UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


GIFT  OF 

Charles    G.    IJaines 


/ 


CASES 


ON 


PUBLIC  CORPORATIONS 


SELECTED    BY 

HOWARD  S.  ABBOTT 

Head  of  the  Department  of  Corporations,  College  of  Law 
University  of  Minnesota 


St.  Paul,  Minn. 
WEST  PUBLISHING  CO. 

1898 


r 


Copyright.  1898, 

BY 

WEST  PUBLISHING  COMPANY. 


CT/^H 


TABLE   OF   CONTENTS. 


DEFINITION. 


Page 


^ 


Board  of  Com'rs  of  Hamilton  County  v. 

Mighels   3 

Askew  V.  Hale  County 6 

Mills  T.  Williams .  . . 7 


LEGISLATIVE    AUTHORITY    OVER 
CORPORATE  REVENUES. 

Gutaweller  v.  People 9 


CREATION  OF   CORPORATION  BY 
IMPLICATION. 


10 


*Q  Broking  v.  Van  Valen 

]    SUBMISSION  OF  CHARTER  TO  VOTE 
OF  PEOPLE. 


^ 


Smith  V.  Crutcher 11 

CORPORATE    EXISTENCE    NOT    OPEN 
TO   COLLATERAL  ATTACK. 

Coler  V.  Dwight   School  Tp.  of  Richland 

County    12 

State  V.  Whitney 18 

POAVER    OF    LEGISLATURE    TO    COM- 
PEL PAYMENT  OF  DEBTS  NOT 
LEGALLY  BINDING. 


City  of  Guthrie  v.  Territory. 


19 


PUBLIC  PO^VERS  AND  RIGHTS  HELD 
AT  WILL  OF  LEGISLATURE. 


V^ 


rince  v.  Crocker 24 

Creditors'    Rights    cannot   be    Impaired- 
Upper  Darby  Tp.  v.  Borough  of  Lansdowne     27 

DESCRIPTION  OF  CORPORATE 
BOUNDARIES. 


Town  of  Enterprise  v.  State 28 

State  V.  Inhabitants  of  Town  of  Pocatello     31 


<i<Qi      WHAT   TERRITORY  MAY   BE  AN- 
^*  NEXED. 

MForsyth  v.  City  of  Hammond 34 

APPORTIONMENT       OF       PROPERTY 

AND   DEBTS  IN   CASE   OF 

DIVISION. 

Johnson  v.  City  of  San  Diego 36 

Rumsey  v.  Town  of  Sauk  Center 40 

Mt.  Pleasant  v.  Beck  with 42 


OFFICERS   AND    AGENTS    OF    PUBLIC 
CORPORATIONS. 

Legrislative    Control   of    Public   Office. 

Page 
Marquis  v.  City  of  Santa  Ana 4.8 

Definition   of  Public    Office    and   Officer. 

Hall  V.  State  of  Wisconsin 49 


Removal  from  Office. 


State  V.  Rest. 
State  V.  Curry 


52 
56 


Liability  on  Contract. 

State  V.  Common  Council  of  Michigan  City     58 


Liability  for  Torts  of  Agents. 


Taylor  v.  City  of  Oweusboro. 
Horton  v.   Newell 


60 
63 


Rights   of  Public   Official  to    Compensa- 
tion. 

Ryce  V.  City  of  Osage 64 

"Office"    Created    by    Law    not    Contract. 

Speed  V.   Common   Council  of   City   of   De- 


troit 


66 


Increase    or  Decrease    of   Pay   During 
Term  of  Office. 

Buck  V.  City  of  Eureka 67 

City  of  Louisville  v.  Wilson 70 

Oldham  v.  City  of  Birmingham 72 


POWERS  OF  PUBLIC   CORPORA- 
TIONS. 

Discretionary     Pow^ers     yot     Subject     to 
Judicial   Control. 

Gunning  Gravel  Co.  v.  City  of  New  Orleans     76 
Chase  v.  City  of  Oshkosh 79 

Delegated  Povsrers   cannot  be  Delegated. 

State  V.  Garibaldi 81 

Town  of  Trenton  v.  Clayton S3 

Extent   and   Nature   of   "Powers   Granted. 

Taylor  v.  Bay  City  St.  Ry.  Co S."> 

Town  of  Newport  v.  Batesville  &  B.  Ry. 
Co 87 


THE  POLICE  POW^ER— SCOPE  AND 
LIMITATIONS. 


Coombs  V.  McDonald . 


Slaughterhouses. 

Rund  V.  Town  of  Fowler 


89 


90 


ABB.CORP. 


(ill) 


iT  TABLE  OF 

Cemeteries. 

Page 

City   of  Austin   t.   Austin   City   Cemetery 
Ass'n    91 

Public   Markets. 

State  V,  Sarradat 93 

Inspection   of    Merchandise    Offered   for 
Sale. 

People  V.  Wagner 95 

The  Abatement  of  Nuisances  in  General. 

Walker  v.  Jameson 97 

Regulation  of  Occupations  and  Amuse- 
ments. 

Lacey,  Ex  parte 101 

Construction  of  Buildings. 

State  V.  Jolinson 103 

Kaufman  v.  Stein lOi 

Impounding  of  Animals. 

Cochrane  v.  City  of  Frostburgh 107 

Regulation  of   Railways  xrithin  City 
Limits. 

South  C5ovington  &  C.  St.  Rj.  Co.  v.  Berry. .  110 

THE   POWER   TO   INCUR   INDEBTED- 
NESS. 

State  V.  Moore 112 

For  School  Houses. 

Wetmore  v.  City  of  Oaliland 115 

For  Service  of  Attorneys. 

Simrall  t.  City  of  Covington 118 

"Indebtedness"    Defined. 

Kelly  V.  City  of  Minneapolis 121 

Lewis  V.  Widber 125 

Waat  should  be  Included  in  Term 
"Indebtedness." 

Finlayson  v.  Vaughn 127 

POWER   TO    CHARTER   PRIVATE 
MONOPOLIES. 

Rutland  Electric  Light  Co.  v.  Marble  City 

Electric  Light  Co 128 

City  of  Breuham  v.  Brenham  Water  Co. .  130 

OWNERSHIP     OF     MUNICIPAL     MO- 
NOPOLIES. 

Liiin  V.  Borough  of  Chambei-sburg 139 

City  of  Crawfordsville  v.  Braden 143 

Borough  of  Mill  vale,  In  re 148 

ACTS    ULTRA    VIRES    AFFECTING 
PUBLIC   PROPERTY. 

Huron  Waterworks  Co.  v.  City  of  Huron.  .   151 

Condemnation  of  Land    Outside   of   City 
Limits. 

Gallon  V.  City  of  Jacksonville 159 


CONTEXTS. 

MUNICIPAL    ORDINANCES. 

Limitations    upon    Poxirer    to    Pass    Or- 
dinances. 

Page 
State  V.  Burns 160 

Mode  of  Enactment. 

City  of  Vancouver  v.  Wintler 161 

Yeas  and  Nays. 

O'Neil  V.  Tyler 1G2 

Preston  v.  City  of  Cedar  Rapids 163 

Several  Readings. 

Swindell  v.  State 164 

Publications. 

City  and  County  of  San  Francisco  v.  Buck- 
man    168 

Publication  in  the  English  Language. 

North  Baptist  Church  v.  City  of  Orange. .  170 

Record  of  Ordinance. 

City  of  Hammond  v.  New  York,  C.  &  St. 
L.  Ry.  Co 171 

Ordinance   Affecting    Po^ver    of   Success- 
ors. 

Columbus  Gaslight  &  Coke  Co.  v.  City  of 
Columbus    173 

Violation  of  Fourteenth  Amendment. 

State  V.  Mahner 175 

Garrabad,  In  re 177 

Consistency  ivith  General  Laws. 

State  V.  Sherard 181 

Must  be  Laivf  ul  and  Reasonable. 

Hawes  v.  City  of  Chicago 182 

Must  be  Impartial  and  General. 

City  of  Saginaw  v.  McKnight 184 

Clements  v.  Town  of  Gasper 185 

Repeal  and  Enforcement. 

Waukesha    Hygeia    ^Mineral    Spring    Co.    v. 
President,  etc.,  of  Village  of  Waukesha.  .    188 

Enforcement  by  Fines. 

City  of  Detroit  v.  Ft.  Wayne  &  B.  I.  Ry. 
Co 190 

MUNICIPAL  SECURITIES. 
Can  Po\rer  to  Issue  Bonds   be   Implied. 

Rathbone    v.    Board   of    Com'rs    of   Iviowa 
County    192 

There    must   be    Express    Power. 

Dodge  V.  City  of  Memphis 198 

Estoppel    by    Course    of    Dealing    or    Re- 
citals in  Bonds. 

City  of  Evansville  v.  Dennett 200 

Board  of  Sup'rs  of  Cumberland  Co.  v.  Ran- 
dolph       205 

Mercer  County  v.  Provident  Life  &  Trust 
Co.  of  Philadelphia 207 


TABLE  OF  CONTENTS. 


MUNICIPAL  CONTRACTS. 

Letting   of   Contract   to   Bidders. 

Page 
McDermott  v.   Board  of   Street  &  Watet 
Com'rs  of  Jersey  City 214 

To  Lowest   Bidder. 

Renting  v.  City  of  Titusville 210 

Frame  v.   Felix 218 

Authority  of  Municipal  OflBLcers  to  Con- 
tract. 

Columbus  Water  Co.  t.  City  of  Columbus  221 


LOCAL   ASSESSMENTS.  j 

Oshkosh  City  Ry.  Co.  v.  Winnebago  County  228 

Power  not  Inferred  from  "General  Wel- 
fare" Clause. 

Nelson  v.  Town  of  Homer 230 

"What  Constitutes  a  "Local  Improve- 
ment." 

Pavne  t.  Village  of  South  Springfield 2.31 

Palmer  v.  City  of  Danville 232 

Preliminary   Matters. 

Buckley  v.  City  of  Tacoma 284 

City  of  Atlanta  v.  Gabbett 239 


'When    Municipality   Liable    for    Change 
of  Grade. 

Page 

Drummond  v.  City  of  Eau  Claire 270 

City  of  Chicago  v.  Burcky 272 

Municipal  Control  of  Streets. 

City  Council  of  Augusta  r.  Burum 274 

Inhabitants  of  City  of  Trenton  v.  Trenton 

Pass.  Ry.  Co 277 

Citv  of  St.  Paul  V.  Chicago,   M.  &  St.  P. 

Rv.  Co 279 

Citv  of  Detroit  v.  Ft.  Wavne  &  E.  Ry.  Co..  282 
Davis  V.  East  Tennessee,  V.  &  G.  Ry.  Co..  2W) 
Green  v.  Eastern  Ry.  Go.  of  Minnesota. .  .   2S9 

Burger  v.  ilissouri  Pac.  R.  Co 290 

City  of  Chariton  v.  Fitzsimmons 292 

Control  of  Manner  of  Use  by  Public. 

Wettengel  v.  City  of  Denver 291 

Commonwealth  v.  Fonton 290 

Commonwealth  v.  Mulhall 297 

Burdett  v.   Allen 298 

Wilson  V.  Beyers 300 


Bridges. 

City  of  Rosedale  v.  Golding.  . 


302 


MUNICIPAL  LIABILITY. 


City  of  Kansas  City  v.  Lemen 303 

Snider  v.  City  of  St.  Paul 300 

Barron  v.  City  of  Detroit 308 


Methods  of  Apportionment. 

Raymond's  Estate  v.  Mayor  of  Borough  of 

Rutherford    241 

Cain  V.  City  of  Omaha 245 


MUNICIPAL  TAXATION. 

Must  be  for  Public  Purpose  | 

Love  V.  City  of  Raleigh 2i6  i 

City  of  St.  Louis  v.  Western   Union  Tel. 

Co 249 

City  of  Chester  v.  Western  Union  Tel.  Co..  252 
Borough  of  Sayre  v.  Phillips 253 

What  Property  Exempt. 

Von  Steen  v.  City  of  Beatrice 255  ■ 

Kilgus  V.  Trustees  of  the  Orphanage  of  the  ] 

Good  Shepherd   257 

Statutory   Exemptions,    How    Construed. 

City  of  Clinton  v.  Henry  County 259 

Of   Corporate   Property. 

Chicago,  M.  &  St.  P.  Ry.  Co.  v.  City  of  Mil- 
waukee       260 

Of  Agricultural  Land. 

Taylor  v.  City  of  W^averly 263 


STREETS  AND   BRIDGES. 

Failure  to  Use   Street  not   an  Abandon- 
ment. 

City  of  Lawrenceburgli  v.  Wesler 264 

Discretionary  Pow^ers  as  to  Vacation  of 
Street. 

City  of  Mt  Carmel  v.  Shaw 208 


Perfomxance  of  Discretionary  Duties. 

Tate  V.  City  of  Greensborough 310 

For   Failure   to   Abate   Nuisance. 

Love  V.  City  of  Atlanta 319 

For  Negligent  Supply  of  Water. 

Springfield  Fire  <fe  Marine  Ins.  Co.  v.  Vil- 
lage of  Keeseville 321 


324 


For  Failure  to  Enforce  Ordinance. 

Fifield  V.  Common  Council  of  City  of  Phoe 
nix   

For  Defective  Streets. 

Jackson  v.  City  of  Greenville 327 

Hamilton  v.  City  of  Detroit 330 

For    Defect    in    Sidewalk    Outside    of 
Street. 

City  of  Chadron  v.  Glover 3B1 

For  Defective  Plan  or  Construction. 

Blyhl  V.  Village  of  Waterville ' 332 

For  Defective  Condition. 

City  of  Atlanta  v.  Milam 334 

When  Defect  is  not  Proximate  Cause  of 
Injury. 

Town  of  Fowler  v.  Linquist 335 

Obstructions  in  Street. 

1  Flynn  v.  Taylor 338 

Bowes  V.  City  of  Boston 340 


vl 


TABLE  OF  CONTENTS. 


Ice  and  Snow. 

Page 

Scoville  V.  Salt  Lake  City 342 

Kanueuberg  v.  City  of  Alpena o44 

Hazzaid  v.  City  of  Council  Bluffs 34o 

Unlighted    Condition   of    Streets. 

Davenport  v.  City  of  Hannibal 34^ 

Notice  of  Defect. 

Tucker  t.  Salt  Lake  City 349 

Hemblin?  v.  City  of  Grand  Rapids 351 

Huut  V.  City  of  Dubuque 353 

West  V.  City  of  Eau  Claire 355 

liiability  for  Abutter's  Negligence. 

City  of  Wabasha  v.  Southworth 356 

Lambert  v.   Pembroke 358 


CONTRIBUTORY      NEGLIGENCE      OP 
PERSON  INJURED. 

PaRo 

Owen  V.  City  of  Ft,  Dodge S59 

Mullen  V.  City  of  Owosso 362 

Maloy  V.  City  of  St.  Paul 365 

For  Construction  or  Condition  of  Drains 
or  Sexirers. 

Geurkink  v.  City  of  Petaluma 366 

City  of  Beatrice  v.  Leary 368 

Blizzard  v.  Borough  of  Danville 371 

Tate  V.  City  of  St.  Paul 372 

For  Torts   of   Officers   or  Agents. 

City  of  New  York  v.  Workman 374 

Gillespie  v.  City  of  Lincoln 376 

Whitfield  V.  City  of  Paris 380 


CASES  REPORTED. 


Askew  V.  Hale  County  (54  Ala,  639). . . 
Barron  v.  City  of  Detroit  (54  N.  W.  273, 


308 


371 
332 


205 


94   Mich.   601) 
Blizzard   v.   Borough  of  Danville   (34  Atl. 

84(1,  175  Pa.  St.  479) 

Blvhl  V.   Village  of  Waterville  (58  N.  W. 

817,  57  Minn.  115) 

Board   of  Com'rs  of  Hamilton  County   v. 

Mighels  (7  Ohio  St.  1()9) 

Board  of  Sup'rs  of  Cumberland  County  v. 

Randolph  (16  S.  E.  722,  89  Va.  614) 

Borough  of  MillvaJe,  In  re  (29  Atl.  641,  162 

Pa.    St.    374) 148 

Borough  of  Sayre  v.  Phillips  (24  Atl.   76, 

148  Pa.   St.  482) 253 

Bowes  V.  City  of  Boston  (29  N.  E.  633,  155 

Mass.  344)    340 

Buck  V.  City  of  Eureka  (42  Pac.  243,  109 

Cal.   504)    67 

Buckley  v.  City  of  Tacoma  (37  Pac.  441, 

8  Wash.   253) 234 

Burdett  v.  Allen  (13  S.  E.  1012,  35  W.  Va. 

347)    298 

Burger  v.  Missouri  Pac.  Ry.  Co.  (20  S.  W. 

439,  112  Mo.  238) 290 


Cain  V.  City  of  Omaha  (60  N.  W.  368,  42 

Neb.  120)    245 

Gallon  V.   City  of  Jacksonville   (35   N.    E. 

223,  147  111.  113) 159 

Chase  V.  City  of  Oshkosh  (51  N.  W.   560, 

81  Wis.  313) 79 

Chicago,   M.   &  St.  P.  Ry.  Co.   v.   City  of 

Milwaukee  (62  N.  W.  417,  89  Wis.  506).  .  260 
City  and  County  of  San  Francisco  v.  Buck- 
man  (43  Pac.  396,  111  Cal.  25) 168 

City  Council  of  Augusta  v.  Burum  (19  S. 

E.  820,  93  Ga.  68) 274 

City  of  Atlanta  v.  Gabbett  (20  S.  E.  306, 

93  Ga.  266) 239 

City  of  Atlanta  v.  Milam  (22  S.  B.  43,  95 

Ga.  135)   334 

City   of   Austin   v.   Austin    City   Cemetery 

Ass'n  (28  S.  W.  528,  87  Tex.  330) 91 

Citv  of  Beatrice  v.  Leary  (63  N.  W.  370,  45 

Neb.   149)    368 

Citv  of  Brenham  v.  Brenham  Water  Co.  (4 

S.  W.  143,  67  Tex.  542) 130 

Citv  of  Chadron  v.  Glover  (62  N.  W.  62,  43 

Neb.   732)    331 

City  of  Chariton  v.  Fitzsimmons  (54  N.  W. 

146,  87  Iowa,  226) 292 

Citv  of  Chariton  v,  Frazier  (54  N.  W.  146, 

87  Iowa,  226) 292 

Citv  of  Chester  v.  Western  Union  Tel.  Co. 

(25  Atl.  1134,  154  Pa.  St.  4(U) 252 

City  of  Chicago  v.  Burcky  (42  N.  E.  178, 

158  111.    103) 272 

City    of   Clinton,    to   Use   of   Thornton    v. 

Henry   County   (22  S.  W.  494,   115  Mo. 

55j\    259 

Citv  of  Crawfordsv'iil'e' V.'  Braden'(28  N.E. 

&49,   130  Ind.  149) 143 

City  of  Detroit  v.  Ft.  Wayne  &  B.  I.  Ry. 

Co.  (.54  N.  W.  958,  95  Mich.  456) 190 

Citv  of  Detroit  v.  Ft.  Wayne  &  E.  Ry.  Co. 

(51  N.  W.  C)88.  90  Mich.  646) 282 

Citv  of  Evansville  v.  Dennett  (16  Sup.  Ct. 

613.  161  U.  S.  434) 200 

Citv  of  Guthrie  v.  Territory  ex  rel.  Losey 

(31  Pac.  190,  1  Okl.  188) 19 

City  of  Hammond  v.  New  York,  C.  &  St. 

L.  Ry.  Co.  (31  N.  E.  817,  5  Ind.  App.  52(5)  171 
Citv  of  Kans^is  City  v.  Lemon  (6  C.  C.  A. 

627,  57  Fed.  905 303 

Citv  of  Lawrenceburgh  v.  Wesler  (37  N.  E. 

9b6,  10  Ind.  App.  153) 264 

City  of  Louisville  v.  Hoertz  (.'16  S.  W.  944)  70 
City  of  Louisville  v.  Martin  C.Mi  S.  W.  944)  70 
City  of  Louisville  v.  Nevin  (36  S.  W.  944)..  70 
Citv  of  Louisville  v.  O'Connell    (36   S.    W. 

944)    70 

City  of  Louisville  v.  Wilson  (36  S.  W.  944)     70 

ABB.CORP.  (vii) 


Page  I  Page 

6  I  City  of  Mt.  Carmel  v.  Shaw  (39  N.  E.  584, 

i     155  111.  37) 268 

Citv  of  New  York  v.  Workman  (14  C.  C.  A. 

530,  67  Fed.  347) 374 

Citv  of  Rosodale  v.  Golding  (40  Pac.  284, 

55  Kan.  107) 302 

Citv  of  Saginaw  v.  McKnight  (63  N.  W. 

985)    184 

Citv  of   St.   Louis  v.   Western  Union  Tel. 

Co.  (13  Sup.  Ct.  990,  149  U.  S.  465) 249 

City  of  St.  Paul  v.  Chicago,  M.  &  St.  P. 

Ry.  Co.  (65  N.  W.  049.  (J3  Minn.  330) ...   279 
City  of  Vancouver  v.  Wintler  (36  Pac.  278, 

8   Wash.   878) 161 

Citv  of  Wabasha  v.  Southworth  (55  N.  W. 

818,  54  Minn.  79) 3.56 

Clements  v.  Town  of  Casper  (35  Pac.  472)  185 
Cochrane  v.   City  of   Frostburgh   (31   Atl. 

703,  81  Md.  .54) 107 

Coler  V.   Dwight   School   Tp.   of  Richland 

County  (55  N.  W.  587,  3  N.  D.  249) 12 

Columbus  Gaslight  &  Coke  Co.  v.  City  of 

Columbus  (33  N.  E.  292,  50  Ohio  St.  65)  173 
Columbus  Water  Co.  v.  City  of  Columbus 

(28  Pac.  1097,  48  Kan.  99) 221 

Commonwealth   v.  Fenton   (29  N.   E.  653, 

139  Mass.  195) 296 

Commonwealth  v.  Mulhall  (39  N.  E.   183, 

162  Mass.  496) 297 

Coombs  V.  MacDouald   (62   N.  W.  41,   43 

Neb.  632)    89 


Davenport  v.  City  of  Hannibal  (18  S.  W. 

1122,  108  Mo.  471) 347 

Davis  V.  East  Tennessee.  V.  &  G.  Ry.  Co. 

(13  S.  E.  567,  87  Ga.  ()05) 286 

Dodge  V.  City  of  Memphis  (51  Fed.  165) .  .  198 
Drummond  v.  City  of  Eau  Claire  (55  N.  W. 

1028,  85  Wis.  556) '270 

Fegan  v.  Citv  of  Boston,  three  eases  (29 
N.  E.  633,  155  Mass.  344) 340 

Fifield  V.  Common  Council  of  City  of  Phoe- 
nix (36  Pac.  916) 324 

Finlayson  v.  Vaughn  (56  N.  W.  49,  54 
Minn.  331)    127 

Flvnn  V.  Tavlor  (2S  N.E. 418.  127  N.Y..596)  338 

Forsyth  v.  Citv  of  Hammond  (41  N.  E.  950, 
142    Ind.    505) 34 

Frame  v.  Felix  (31  Atl.  375,  167  Pa.  St.  47)  218 

Garrabad,  In  re  (54  N.  W.  1104,  84  Wis. 
585)    177 

Geurkink  v.  City  of  Petaluma  (44  Pac.  570, 
112  Cal.  306)   366 

Gillespie  v.  City  of  Lincoln  (52  N.  W.  811, 
35  Neb.  34) 376 

Green  v.  Eastern  Ry.  Co.  of  Minnesota  (53 
N.  W.  808,  52  Minn.  79) 289 

Guunimr  Gravel  (Jo.  v.  City  of  New  Or- 
leans (13  South.  182,  45  La.  Ann.  911). .     76 

Gutzweller  v.  People  (14  111.  142) 9 

Hall  V.  State  of  Wisconsin  (103  U.  S.  5).  . .  49 
Hamilton  v.  City  of  Detroit  (63  N.  W.  511, 

105  Mich.   514) 330 

Plawes  V.  City  of  Chicago  (42  N.  E.  373, 

158  111.  653) 182 

Hazzard  v.  City  of  Council  Bluffs  (53  N.  W. 

1(  is:;.  87  Iowa,  51) 345 

Hembling  v.  City  of  Grand  Rapids  (58  N. 

W.  310,  99  .Mich.  202) 351 

Horton  V.  Newell  (23  Atl.  910.  17  R.  I.  571)  63 
Howard,  Appeal  of  (29  Atl.  641,  162  Pa.  St. 

374)    148 

Hunt  V.  City  of  Dubuque  (65  N.  W.  319).  .  353 
Huron  Waterworks  Co.  v.  City  of  Huron 

(62  N.  W.  975,  7  S.  D.  9) 151 

Inhabitants  of  City  of  Trenton  v.  Trenton 
Pass.  Ry.  Co.  (27  Atl.  4S:*,) 277 

Jackson  v.  City  of  Greenville  (16  South. 
382,  72  Miss.  220) 327 


viii 


CASES  REPORTED. 


Page 
Johnson  v.  City  of  San  Diego  (42  Pac.  249, 
109  Oal.  468} 36 

Kannenberg  v.  City  of  Alpena  (55  N.  W. 

614,  96  Mich.  53) 344 

Kaufman  v.  Stein  (37  N.  E.  333,  138  Ind. 

49)    104 

Kelly  V.  City  of  Minneapolis  (65  N.  W.  115, 

63  Minn.   125) 121 

Kilgus  V.  Trustees  of  the  Church  Home  for 

Females  (22  S.  W.  750,  94  Ky.  439) 257 

Kilgus  V.  Trustees  of  the  Orphaunge  of  the 

Good  Shepherd   (22   S.   W.   750,   94   Ky. 

439)    257 

Lacey,  Ex  parte  (41  Pac.  411,  108  Cal.  326)  101 
Lambert  v.  Pembroke  (23  Atl.  81,  66  N.  H. 

280)    3."'.8 

Lewis  V.  Widber  (33  Pac.  1128,  99  Cal.  412)  125 
Linn  v.  Borough  of  Chambersburg  (28  Atl. 

842,  160  Pa.  St.  511) 139 

Love  V.  City  of  Atlanta  (22  S.  E.  29,  95 

Ga.  129)    319 

Love  V.  City  of  Raleigh  (21  S.  E.  503,  116 

N.  C.  296) 246 

Mackoy  v.  City  of  Covington  (29  S.  W.  880)  118 
Maloy  V.  City  of  St.  Paul  (56  N.  W.   94, 

54  Minn.  398) 365 

Marquis  v;  City  of  Santa  Ana  (37  Pac.  650, 

103  Cal.  661) 48 

Mercer  County  v.  Provident  Life  &  Trust 

Co.  of  Philadelphia   (19  C.  C.  A.  44,  72 

Fed.   623)    207 

Mills  V.  Williams  (11  Ired.  Law,  558) 7 

Mount   Pleasant   v.   Beckwith    (100   U.   S. 

514)    42 

Mullen  V.  City  of  Owosso  (58  N.  W.  663, 

100  Mich.   103) 302 

Myers  v.  City  of  Huron  (62  N.  W.  975,  7 

S.  D.  9) 151 

Nelson  v.  Town  of  Homer  (19  South.  271, 
48  La.  Ann.  258) 230 

Oldham  v.  City  of  Birmingham  (14  South. 

793.  102  Ala.  357) 72 

O'Neil  V.  Tyler  (53  N.  W.  434,  3  N.  D.  47)  162 

Oshkosh  City  Ry.  Co.  v.  Winnebago  Coun- 
ty (61  N.  W.  1107,  89  Wis.  435) 228 

Owen  T.  City  of  Ft.  Dodge  (67  N.  W.  281)  3.59 

Palmer  v.  City  of  Danville  (38  N.  E.  1067, 

irA  111.  1.5(i) 232 

Payne  v.   Village  of  South  Springfield  (44 

N.  E.  105.  161  111.  285) 231 

People  V.  Barrie  (49  N,  W.  609,  86  Mich. 

51M)    95 

People  V.  Wagner  (49  N.  W' .  609,  86  Mich. 

594)    95 

People  V.  Wittelsberger  (49  N.  W.  609,  86 

Mich.    594) 95 

Preston  v.  City  of  Cedar  Rapids  (63  N.  W. 

577)    163 

Prince  v.  Crocker  (44  N.  E.  446,  160  Mass, 

347)    24: 

Rathbone   v.    Board    of   Com'rs   of    Kiowa 

County  (73  Fed.  395) 192 

Renting  v.  City  of  Titusville  (34  Atl.  916, 

175  Pa.  St.  512) 216 

Rumsey  v.  Town  of  Sauk  Centre  (61  N.  W. 

330,  .59  Minn.  310) 40 

Rund  V.  Town  of  Fowler  (41  N.  E.  456,  142 

Ind.   214) 90 

Rutland   Electric   Light  Co.  v.  Marble  City 

Electric  Light  Co.  (26  Atl.  635,  65  Vt.  377" i  128 
Ryce  V.  City  of  Osage  (55  N.  W.  532,  88 

Iowa,  558) 64 

Scoville  V.  Salt  Lake  City  (39  Pac.  481,  11 

Utah.  60» 342 

Simrall  v.  City  of  Covington  (29  S.  W.  HSCJ)  118 
Smith  V.  Crutcher  (18  S.  W.   521.  92  Kv. 

586) :.     11 

Snider  v.    City  of  St.  Paul  (53  N.  AV.  763, 

51  Minn.  466) 306 

South  Covington  &  C.  St.  Ry.  Co,  v.  Berry 

(18  S.  W.  1026,  93  Ky.  43) 110 


Page 
Speed  v.  Common  Council  of  City  of  De- 
troit (58  N.  \Y.  638,  100  Mich.  92) 66 

Springfield  Fire  &  Marine  Ins.  Co.  v.  Vil- 
lage of  Keeseville  (42  N.  E.  405,  148  N. 

Y.  46) 321 

State  V.  Burns  (11  South.  878,  45  La.  Ann. 

34)    160 

State  V.  Garibaldi  (11  South.  36,  44  La.  Ann. 

809)     81 

State  V.  Johnson  (19  S.  E.  599,  114  N.  C. 

846)      103 

State  V.  Mahner  (9  South.  480,  43  La.  Ann. 

496)    175 

State   V.   Sairadat    (15   South.   87,   46   La. 

Ann.  700)   93 

State  V.  Sherard  (23  S.  E.  157,  117  N.  C. 

716)    181 

State  ex  rel.  Broking  v.  Van  Valen  (27  Atl. 

1070,  56  N.  J.  Law,  85) 10 

State   ex    rel.    Holcomb   v.    Inhabitants   of 

Town  of  Pocatello  (28  Pac.  411,  2  Idaho, 

908)    31 

State  ex  rel.   Keith  v.  Common  Council  of 

Michigan  City  (37  N.  E.  1041,  138  Ind. 

455)    58 

State  ex  rel.  Kuhlman  v.   Rost  (16  South. 

776,  47  La.  Ann.  53) 52 

State  ex  rel.  Renner  v.  Curry  (33  N.  E.  685, 

134  Ind.  133)  56 

State  ex  rel.  Ressel  v.  Whitney  (59  N.  W. 

884,  41  Neb.  613) 18 

State  ex  rel.  School  Dist.  No.  6  of  Thurston 

County  V.  Moore  (63  N.  W.  130,  45  Neb. 

12)    , 112 

State  (McDermott,  Prosecutor)  v.  Board  of 

Street  &  Water  Com'rs  of  .Jersey  City  (28 

Atl.  424,  56  N.  J.  Law,  273) 214 

State  (North  Baptist  Church,  Prosecutor)  v. 

City  of  Orange   (22  Atl.   1004,  54   N.  J. 

Law,  111) 170 

State   (Raymond's   Estate,   Prosecutors) ,  v. 

Borough  of  R-itherford  (27  Atl.  172,  55 

N.  J.  Law  %  441) 241 

Swindell  v.  State  ex  rel.  Maxey  (42  N.  E. 

528,  143  Ind.  153» 164 

Tate  V.  City  of  Greensborough  (19  S.  E.  767, 
114  N.  C.  392) 310 

Tate  V.  City  of  St.  Paul  (58  N.  W.  158,  56 
Minn.  527) 372 

Tavlor  v.  Bav  Citv  St.  Ry.  Co.  (45  N.  W. 
335,  80  Mich.  77) 85 

Tavlor  v.  Citv  of  Owensboro  (32  S.  W.  ^8, 

98  Ky.  271) 60 

Taylor  v.  City  of  Waverly  (63  N.  W.  347, 

94  Iowa.  661) 263 

Town  of  Enterprise  v.  State  ex  rel.  Attor- 

nev  General  (10  South.  740.  29  Fla.  128) .  .  28 
Town  of  Fowler  v.  Linquist  (37  N.  E.  133. 

138  Ind.  566) 335 

Town  of  Newport  v.  Batesville  &  B.  Ry.  Co. 

(24  S.  W.  427,  .58  Ark.  270) 87 

Town  of  Trenton  v.  Clayton  (.50  Mo.  App. 

.535)    83 

Tucker  v.  Salt  Lake  City  (37  Pac,  261,  10 

Utah,  173)   349 

Upper  Darbv  Tp.  v.  Borough  of  Lansdowne 
(34  Atl.  574,  174  Pa.  St.  203) 27 

Von  Steen  v.  City  of  Beatrice  (54  N.  W. 
077,  36  Neb.  421) 255 

Walker  v.  Jameson  (37  N.  E.  402.  140  Ind. 

.591)    97 

Waukesha    Hygeia    Mineral    Spring    Co.    v. 

President,   etc..   of  Village   of    Waukesha 

(.53  N.  W.  675.  83  Wis.  475) 188 

West  V.  City  of  Eau  Claire  (61  N.  W.  313, 

89  Wis.  31) 355 

Wetmore  v.  City  of  Oakland  (33  Pac.  769, 

99  Cal.   146) 115 

Wettengel  v.  City  of  Denver  (39  Pac.  343, 

20  Colo.  55.^) 294 

Whitfield  V.  City  of  Paris  (19  S.  W.  566,  84 

Tex.  431)    380 

Wilson  V.  Bevers  (32  Pac.  90.  5  Wash.  303)  300 
Wingate  ^.  City  of  Tacoma  (37  Pac.  441,  8 

Wash.  2.53)   234 


ILLUSTRATIVE  CASES 


ON   THE 


LAW  OF  PUBLIC  CORPORATIONS. 


(!)• 


PUBLIC    CORPORATIONS. 


BOARD  OF  COM'RS  OF  HAMILTON 
COUNTY   V.   MIGHELS. 

(7  Ohio  St.  109.) 

Supreme  Court  of  Ohio.    Dec.  Term,  1857. 

Error  to  superior  court  of  Cincinnati. 

Ferguson  &  Long,  for  plaintiffs  in  error. 
Johnston  &  Carrall,  for  defendant  in  error. 

BRINKERHOFF,  j.i        *        *        *        *        * 

2.  Is  the  action  maintainable  on  the  princi- 
ples of  the  common  law?  In  entering  on  this 
inquiry,  it  is  but  justice  to  ourselves  to  say 
that,  assisted  by  the  researches  of  diligent 
counsel,  we  have  given  it  an  unusual  share  of 
labor  and  attention;  and  this  not  only  because 
of  the  importance  of  the  question  itself,  but 
for  the  reason  that  the  conclusion  to  which  our 
minds  have  been  compelled  is  in  conflict  with 
a  case  (Commissioners  v.  Butt,  2  Ohio,  348)  de- 
cided by  judges  for  whose  judgment  we  enter- 
tain that  dt'gree  of  respect  which  renders  even 
involuntary  and  irresistible  dissent  from  their 
■conclusions  reluctant  and  self-distrustful. 

For  the  purpose  of  maintaining  this  action, 
an  effort  has  been  made  in  argument  to  assimi- 
late counties  to  natural  persons  and  municipal 
and  other  corporations  proper.  Now,  it  is  con- 
ceded, that  if  the  negligence,  and  consequent 
injury  to  the  plaintiff  below,  had  been  the  act 
of  a  natural  person  in  the  construction  of  a 
private  building,  to  which  the  plaintiff  below 
had  been  invited,  the  party  guilty  of  the  neg- 
ligence would  properly  be  liable  in  damages. 
So,  also,  it  now  seems  to  be  well  settled  that, 
had  the  defendants  below  been  the  agents  of  a 
municipal  or  other  corporation  proper,  and  had 
the  plaintiff  below  been  injured  through  like 
negligence  and  under  lilie  circumstances,  the 
corporation  might  be  held  to  answer  for  the 
injury.  And  why?  Because  where  there  is  a 
wrong  there  ought  to  be  a  remedy.  Persons, 
Avhetlier  natural  or  artificial,  are  boimd  so  to 
iise  their  own  property  and  conduct  their  own 
affairs  as  not  to  injure  others;  and  where  an 
act  is  done  to  the  injury  of  another  by  a 
natural  person  in  the  pursuit  of  his  own  inter- 
ests, or,  through  its  agents,  by  an  artificial 
person,  a  corporation  proper,  which  is  called 
into  existence,  either  at  the  direct  solicitation 
or  by  the  free  consent  of  the  persons  compos- 
ing it  for  the  promotion  of  their  own  local  and 
private  advantage  and  convenience,  and  which 
can  work  only  through  agents,  such  natural 
or  artificial  person  is,  on  every  principle  of 
justice  and  enlightened  reason,  bound  to  recti- 
fy the  consequences  of  Ms  own  misfeasance. 
And  it  is  freely  admitted  that  if  counties  are  in. 
all  material  respects  like  municipal  corpora- 
tions in-oper,  and  may  be  fairly  classed  with 
them,  then  this  action  ought  to  be  maintained. 
But  how  is  the  fact?  This  question  is  vital, 
anl  on  its  solution  the  case  must  depend. 

As  before  remarked,  municipal  corporations 


1  Part  of  the  opinion  is  omitted. 


proper  are  called  into  existence  either  at  the 
direct  solicitation  or  bj^  the  free  consent  of  the 
people  who  compose  them. 

Counties  are  local  subdivisions  of  a  state, 
created  by  the  sovereign  power  of  the  state,  of 
its  own  sovereign  will,  without  the  particular 
sohcitation,  consent,  or  concurrent  action  of 
the  people  who  inhabit  them.  The  former  or- 
ganization is  asked  for,  or  at  least  assented  to, 
by  the  people  it  embraces;  the  latter  is  super- 
imposed by  a  sovereign  and  paramount  au- 
thority. 

A  municipal  corporation  proper  is  created 
mainly  for  tlie  interest,  advantage,  and  con- 
venience of  the  locahty  and  its  people;  a  coun- 
ty organization  is  created  almost  exclusively 
with  a  view  to  the  policy  of  the  state  at  large, 
for  purposes  of  political  organization  and  civil 
administration,  in  matters  of  finance,  of  edu- 
cation, of  provision  for  the  poor,  of  militiiry 
organization,  of  the  means  of  travel  and  trans- 
port, and  especially  for  the  general  administra- 
tion of  justice.  With  scarcely  an  exception,  all 
the  powers  and  functions  of  the  county  organ- 
ization have  a  direct  and  exclusive  reference  to 
the  general  policy  of  the  state,  and  are,  in 
fact,  but  a  branch  of  the  general  administra- 
tion of  that  policy.  Ward  v.  Hartford  Co.,  12 
Conn.  406;  Boalt  v.  Commissioners,  18  Ohio, 
16;  Cincinnati,  W.  &  Z.  R.  Co.  v.  Commission- 
ers of  CUnton  Co.,  1  Ohio  St.  89. 

The  idea  that  the  board  of  county  commis- 
sioners is  the  agent  of  the  county  or  of  its 
people,  is  prominently  advanced  and  pressetl 
on  our  attention.  That  board  is,  in  some  sort, 
the  agent  of  the  county,  it  is  true;  inasmuch 
as  it  alone  is  authorized  to  sue  and  be  sued  in 
respect  to  contracts  growing  out  of  the  county 
organization.  There  is  an  administrative 
necessity  that  some  name  should  be  employed 
as  the  representative  of  the  public  interests  in- 
volved in  such  suits;  and  that  of  the  board  of 
county  commissioners  has,  by  law,  been  desig- 
nated for  that  purpose;  but  the  name  of  the 
county  auditor,  or  the  name  of  the  county 
itself,  had  the  legislature  chosen  so  to  pre- 
scribe, would  have  answered  the  same  pur- 
pose quite  as  well;  and  the  fact,  we  think, 
has  no  special  weight  or  significance. 

But  it  is  said  the  members  of  the  board  of 
county  commissioners  are  chosen  by  the  elect- 
ors of  the  county,  and  hence  the  board  is  to 
be  regarded  as  the  agents  of  the  coimty,  for 
whose  torts  in  the  performance  of  official 
duties  the  county  ought  to  be  responsible. 
True,  the  people  of  the  county  elect  the  board 
of  county  commissioners;  but  they  also  elect 
the  sheriff  and  treasurer  of  the  county.  Are 
the  people  of  the  county  therefore,  responsible 
for  the  malfeasances  in  office  of  the  sheriff,  or 
for  the  official  defalcations  of  the  county 
treasurer?  This  will  not  be  pretended.  And 
yet,  if  this  case  is  to  rest  on  the  principles  gov- 
erning the  relation  of  principal  and  agent, 
wherein  is  the  distinction  between  the  case  at 
bar  and  the  case  supposed.  We  confess  our  in- 
ability to  discover  any  such  distinction.  In 
the  ease  of  municipal  corporations  proper,  the 


PUBLIC    CORPORATIONS. 


electors  are,  mediately  or  immediately,  invest- 
ed with  very  ample  control  over  their  agents, 
not  only  as  to  what  shall  be  done,  but  how  it 
shall  be  done,  and  by  whom  it  shall  be  done; 
they  may  exact  such  guarantees  as  they  deem 
proper  for  their  own  indemnity,  and  may  pre- 
scribe by-laws  for  their  government.  As  be- 
tween the  commissioner  and  the  electors  of  a 
county  all  this  is  wanting.  All  his  powers  and 
duties  are  prescribed  by  the  supreme  legisla- 
ture; and  the  electors  can  exercise  no  control 
over  him  whatsoever,  except  such  as  springs 
from  the  bare  fact  of  election;  and  to  this  ex- 
tent they  can  control  a  sheriff  or  treasurer  as 
well  as  a  commissioner. 

Chancellor  Kent  (1  Comm.  572,  573)  says 
that  "a  great  proportion  of  the  rules  and  max- 
ims which  constitute  the  code  of  the  common 
law,  grew  into  use  by  the  application  of  the 
dictates  of  natural  justice  and  cultivated  rea- 
son to  particular  cases;"  and  that  "the  best 
evidence"  of  what  that  law  is,  "is  to  be  found 
in  the  decisions  of  courts  of  justice,  contained 
in  books  of  reports,  and  in  the  treatises  and 
digests  of  learned  men." 

Now,  on  what  principles  of  "natural  jus- 
tice," or  of  "cultivated  reason,"  aside  from 
positive  statute,  the  people  of  a  county  should 
be  held  responsible  for  the  personal  or  official 
misconduct  of  a  county  commissioner,  we  are 
wholly  unal)le  to  perceive. 

But  how  stands  the  case  upon  authority, 
"by  the  decisions  of  courts  of  justice,  and  the 
treatLses  of  learned  men?" 

The  county  organization,  substantially  sim- 
ilar in  all  its  general  features  and  functions, 
has  existed  in  England  from  the  earliest 
times,  and  in  all  the  states  of  this  Union, 
with  perhaps  one  or  two  exceptions,  more 
nominal  than  real,  from  the  period  of  their 
settlement;  yet  the  researches  of  diligent 
counsel  have  failed  to  furnish  a  single  case 
where  an  action  has  been  maintained  against 
a  county  in  a  case  like  the  one  before  us, 
except  that  of  the  Commissioners  v.  Butt,  be- 
fore cited,  and  which  was  I'ecognized  as  au- 
thoritative in  Richardson  v.  Spencer,  G  Ohio, 
13,  but.  apparently  without  any  particular  ex- 
amin.'ition  of  the  principles  on  which  it  was 
based,  or  of  the  authorities  bearing  upon 
them. 

It  is  said  that  the  court  below  sustained  the 
action  in  the  case  before  us  on  the  authority 
of  Comrai.'sioners  v.  Butt;  and  we  concur 
with  the  court  below  in  the  opinion  that,  if 
that  case  was  properly  decided,  this  action 
must  be  maintained.  We  have  looked  in 
vain  for  any  substantial  distinction  between 
them.  In  that  case,  a  debtor,  having  been 
surrendered  by  his  appearance  bail,  and  com- 
mitted to  the  custody  of  Butt,  who  was  sher- 
iff of  Brown  county,  escaped,  by  reason  of 
there  being  no  jail  in  Brown  county,  and  the 
sheriff  not  being  by  law  at  liberty  to  imprison 
the  debtor  elsewhere  than  in  the  jail  of  the 
county.  The  creditor  having  recovered 
against  him,  as  sheriff,  for  the  escape.  Butt 
brought  his  action  on  the  case  against  the 


board  of  commissioners  of  the  county,  to  re- 
cover the  damages  he  had  thus  sustained  by 
reason  of  its  neglect  of  duty  to  provide  a  jail. 
The  court,  Burnet,  J.,  dissenting,  held  the  ac- 
tion to  be  well  brought,  on  the  ground  that 
the  commissioners  were  the  agents  and  rep- 
resentatives of  the  county.  In  that  opinion, 
for  the  reasons  before  indicated,  as  well  as 
on  the  authorities  about  to  be  noticed,  we 
find  ourselves  unable  to  concur.  We  cannot 
but  think  that  county  commissioners  are  not 
agents  or  representatives  of  the  county  in: 
any  such  sense  or  manner  as  to  render  the 
people  of  the  county  justlj^  answerable  for 
their  neglect.  The  reported  opinion  of  the 
majority  of  the  court  in  that  case  may  fur- 
nish very  abundant  reason  why  the  utter 
neglect  of  county  commissioners  to  furnish  a 
jail,  and,  the  sheriff  himself  being  in  no  fault, 
a  plea  of  these  facts  ought  to  be  held  a  good, 
bar  to  an  action  for  an  escape,  and  the  cred- 
itor turned  over  to  an  action  against  the  com- 
missioners personally;  or  why,  if  such  plea 
be  held  bad,  the  sheriff  might  maintain  his 
action  against  the  county  commissioners  in 
their  individual  capacity,  for  the  personal 
injury  resulting  to  him  from  their  neglect, — 
and  as  to  these  alternatives,  the  question  not 
being  directly  before  us,  we  express  no  opin- 
ion,—but  it  aft"ords  to  our  minds  no  satisfac- 
tory reason  why  the  people  of  a  county 
should  be  held  pecuniarily  responsible  for  the 
delinquencies  of  officers  over  whose  acts  that 
people  have  no  supervision  or  control  what- 
soever. And  the  case  itself,  as  before  re- 
marked, stands  alone.  At  the  time  it  was 
made,  it  was  unsupported  by  any  reported 
case;  and,  so  far  as  we  can  ascertain,  it  re- 
mains still  unsupported  by  any  case  outside 
of  Ohio;  while  the  eases  on  the  other  side 
are  uniform,  and  so  numerous  as  to  render 
a  particular  notice  of  all  of  them  too  tedious 
to  be  attempted. 

The  leading  case  on  this  subject  seems  to  be 
that  of  Russell  v.  Men  of  Devon  Co.,  2  Term 
R.  607,  which  was  an  action  on  the  case 
against  the  men  dwelling  in  the  county  of 
Devon,  to  recover  satisfaction  for  an  injury 
done  to  a  wagon  of  the  plaintiff  in  conse- 
quence of  a  bridge  being  out  of  repair,  which 
ought  to  have  been  repaired  by  the  county; 
to  which  two  of  the  inhabitants,  for  them- 
selves and  the  rest  of  the  men  dwelling  in 
that  county,  appeared  and  demurred  general- 
ly. On  hearing,  the  court  of  king's  bench 
unanimously  sustained  the  demm-rer;  and 
this,  apparently,  on  three  grounds:  (1)  That 
there  was  no  precedent  for  such  an  action. 
(2)  By  reason  of  the  inconvenience  resulting 
from  the  multiplicity  of  actions  for  contribu- 
tion to  which  a  recovery  and  levying  of  the 
judgment  upon  the  inhabitants  of  the  county 
woidd  give  rise;  and  (3)  that  the  county  of 
Devon  had  no  fund  out  of  which  satisfaction 
could  be  made.  And  this  last  reason,  it 
seems  to  us,  applies  with  great  weight  to  the 
case  in  hand.  It  is  true,  counties  in  Ohio 
have  a  treasury,  and  in  it  various  funds.    But 


DEFINITION. 


those  funds  are  all  raised  for  specific  pur- 
poses; to  those  purposes  they  must  be  de- 
voted; the  commissioners  are  authorized  to 
levy  no  tax,  except  for  such  purposes  as  are 
authorized  by  statute;  and  we  have  no  stat- 
ute authorizing  tlie  levy  of  a  tax  to  satisfy 
such  a  judgment  as  this.  And  in  Boalt  v. 
Commissioners,  before  cited,  it  was  decided 
that  a  bill  in  chancery  would  not  lie  against 
a  county  to  subject  equities,  and,  in  the  opin- 
ion of  the  court  in  that  case,  it  is  assumed, 
arguendo,  as  indisputable,  that  county  bridges, 
court  house,  public  offices,  jail,  or  poor-house, 
cannot  be  sold  on  execution  at  law. 

In  Riddle  v.  Proprietors  of  Loclis  &  Canals 
on  Merrimae  River,  7  Mass.  1G9,  Parsons,  C. 
J.,  delivering  the  opinion  of  the  court,  clearly 
lays  down  the  principle  on  which  we  proceed. 
He  says:  "We  distinguish  between  proper 
aggregate  corporations,  and  the  inhabitants 
■of  any  district,  who  are  by  statute  invested 
with  particular  powers  without  their  consent. 
These  are  in  the  books  sometimes  called 
'quasi  corporations.'  Of  tliis  description  are 
counties  and  himdreds  in  England;  and  coun- 
ties, towns,  etc.,  in  this  state.  Although 
<iuasi  corporations  are  liable  to  information 
or  indictment,  for  a  neglect  of  public  duty, 
imposed  on  them  by  law;  yet  it  is  settled  in 
the  case  of  Russell  v.  Men  of  Devon  Co., 
that  no  private  action  can  be  maintained 
against  them  for  a  breach  of  their  corporate 
■duty,  unless  such  action  be  given  by  statute. 
And  the  sound  reason  is  that,  having  no  cor- 
porate fund,  and  no  legal  means  of  obtaining 
one,  each  corporator  is  liable  to  satisfy  any 
judgment  rendered  against  the  con^oration. 
This  burthen  the  common  law  wnll  not  im- 
pose, but  in  cases  where  the  statute  is  an  au- 
thority, to  which  every  man  must  be  consid- 
■ered  as  assenting.  But  in  regular  corpora- 
tions, which  have,  or  are  supposed  to  have, 
a  corixjrate  fund,  this  reason  does  not  apply." 

The  same  doctrine  is  asserted  by  the  same 
court  in  Mower  v.  Inhabitants  of  Leicester.  9 
Mass.  247;  and  Is  recognized  as  settled  law 
by  Ang.  &  A.  Corp.  §  G.30,  note.  So  in  South 
Carolina.  Young  v.  Commissioners,  2  Nott 
&  McC.  537.  and  White  v.  City  Council,  2  Hill 
(S.  C.)  571.  So  in  Connecticut.  Ward  v. 
Hartford  Co.,  12  Conn.  404.  The  case  of 
Freeholders  of  Sussex  Co.  v.  Strader,  18  N. 
J.  Law,  108,  before  alluded  to,  was  an  ac- 
tion brought  by  Strader  against  the  county 
of  Sus.sex,  New  Jersey,  to  recover  damages 
for  an  injury  to  a  team  of  the  plaintiff,  on 
account  of  a  defect  in  a  public  bridge  which 


the  chosen  freeholders  of  the  county  were 
bound  to  keep  in  repair.  In  that  case  the 
court  not  only  sustain  the  doctrine  and  dis- 
tinction laid  down  in  the  Men  of  Devon,  and 
by  Chief  Justice  Parsons  in  7  Mass.;  but 
Chief  Justice  Hornblowcr,  in  delivering  his 
opinion,  supposes,  and  remarks  upon  almost 
the  very  case  before  us.  He  says:  "It  is 
the  duty,  for  instance,  of  the  board  of  free- 
holders, to  erect  and  keep  in  repair  court 
houses  and  jails;  a  neglect  to  do  so  may  oc- 
casion great  inconvenience,  perhaps  positive 
loss  or  injury  to  some  individual  whose  busi- 
ness or  duty  requires  his  attendance  at 
court;  the  building,  by  being  old  and  out  of 
I'epair,  may  give  way,  and  break  a  man's 
limbs,  or  occasion  him  an  injury  in  some 
other  way;  but  no  one  will  pretend  that  in 
such  ca.se  an  action  would  lie  by  the  person 
injui-ed  against  the  county." 

The  same  doctrine  was  recognized  and  ap- 
plied in  Illinois,  in  Hedges  v.  Madison  Co., 
1  Gilman,  567;  by  the  supreme  court  of  the 
United  States  in  Fowle  v.  Common  Council 
of  Alexandria,  3  Pet.  409;  and  is  also  applied 
and  strongly  urged  and  approved  by  the  su- 
preme court  of  New  York  in  the  able  opinion 
of  Selden,  J.,  in  Morey  v.  Town  of  Xewfane, 
8  Barb.  645. 

It  is  undoubtedly  competent  for  the  legis- 
lature to  make  the  people  of  a  county  liable 
for  the  official  delinquencies  of  the  county 
commissioners,  and,  if  they  think  it  wise 
and  just,  without  any  power  in  the  people  to 
control  the  acts  of  the  commissioners,  or  to 
exact  indemnity  from  them;  but  this  has  not 
yet  been  done;  and  we  think  that  such  lia- 
bility cannot  be  derived  from  the  relation  of 
the  parties  either  on  the  principles  or  the 
precedents  of  the  common  law. 

In  conclusion,  and  at  the  risk  of  the  penal- 
ties of  tautology,  I  repeat,  that  while,  both 
upon  principle  and  authority,  we  find  our- 
selves compelled  to  overrule  the  case  of  Com- 
missioners V.  Butt,  as  having  been  en*one- 
ously  decided,  we  do  so  with  extreme  re- 
luctance, and  with  all  respect  for  the  judg- 
ment and  veneration  for  the  memory  of  the 
judges  who  decided  it;  but,  with  our  convic- 
tions, we  could  not  do  otherwise;  and.  in 
overruling  it,  we  are  satisfied  we  are  contrib- 
uting to  place  the  law  of  Ohio  upon  a  footing 
of  sound  principle,  as  well  as  in  harmony 
with  that  of  other  states  whose  jurispru- 
dence, like  our  own,  rests  on  the  basis  of  the 
common  law. 

Judgment  reversed. 


PUBLIC    CORFUKATIONS. 


ASKEW    T.    HALE    COUNTY. 
(54  Ala.  639.) 
Supreme  Court  of  Alabama.    Dec.  Term,  1875. 
Appeal  from  circuit  court,  Hale  county. 
W.  &  W.  J.  Webb,  for  appellant.     W.  B. 
Young,  for  appellee. 

BRICIvELL,  C.  J.  The  argument  in  sup- 
port of  the  first  and  third  counts,  is  the  same 
substantially,  and  may  be  thus  stated:  Coun- 
ties are  muuicipal  corporations,  charged  with 
the  ministerial  duty  of  keeping  in  repair  the 
public  roads  and  bridges,  so  that  they  shall 
be  safe  and  commodious  ways,  for  the  passage 
of  the  public.  The  law  imposing  the  duty,  for 
misfeasance  or  nonfeasance  in  its  perform- 
ance, from  which  injury  ensues  to  an  individ- 
ual, an  action  will  lie.  In  support  of  the  ar- 
gument reference  is  made  to  many  of  the  nu- 
merous authorities,  which  hold  municipal  cor- 
porations enjoined  to  keep  streets,  and 
bridges,  parts  of  the  streets,  in  repair,  and 
supplied  with  the  means  of  performing  the 
duty,  are  liable  for  injuries  resulting  from  the 
non-performance,  or  the  unskillful  and  negli- 
gent manner  of  performance.  A  radical  er- 
ror, fatal  to  the  argument,  is  in  treating  the 
county  as  a  municipal  corporation.  It  has 
corporate  characteristics,  but  it  is  not  a  mu- 
nicipal corporation,  though  often  so  termed. 
It  is  an  involuntary  political  or  civil  division 
of  the  state,  created  by  statute  to  aid  in  the 
administration  of  government.  It  is  in  its 
very  nature,  chax'acter  and  purposes,  public, 
and  a  governmental  agency,  or  auxiliary, 
rather  than  a  corporation.    Whatever  of  pow- 


er it  possesses,  or  whatever  of  duty  it  is  re- 
quired to  perform,  originates  in  the  statute 
creating  it.  It  is  created  mainly  for  the  in- 
terest, advantage,  and  convenience  of  the 
people  residing  within  its  territorial  bound- 
aries, and  the  better  to  enable  the  government 
to  extend  to  them  the  protection  to  which 
they  are  entitled,  and  the  more  beneficently 
to  exercise  over  them  its  powers.  All  the 
powers  with  which  the  county  is  entrusted, 
are  the  powers  of  the  state,  and  all  the  duties 
with  which  they  are  charged,  are  the  duties- 
of  the  state.  If  these  were  not  committed  to 
the  county,  they  must  be  conferred  on  some 
other  governmental  agency.  The  character 
of  these  powers,  so  far  as  counties  in  this 
state  are  concerned,  are  all  for  the  purposes  of 
civil  and  political  organization.  Tlie  levy 
and  collection  of  taxes,  the  care  of  the  poor, 
the  supervision  and  control  of  roads,  bridges 
and  ferries,  the  compensation  of  jurors,  at- 
tending the  state  courts,  and  the  supervision 
of  convicts  sentenced  to  hard  labor,  as  a  pun- 
ishment, for  many  violations  of  the  criminal 
law,  it  is  the  general  policy  of  the  state  to 
entrust  to  the  several  counties,  and  are  all 
but  parts  of  the  power  and  duty  of  the  state. 
These  powers  could  be  withdrawn  by  the 
state,  in  the  exercise  of  its  sovereign  will,  and 
other  instrumentalities  or  agencies  establish- 
ed, and  clothed  with  them.  Loper  v.  Henry 
Co.,  26  Iowa.  267:  Hamilton  Co.  v.  Mighels, 
7  Ohio  St.  109;  Eastman  v.  Meredith,  36  N. 
H.  284;    1  DiU.  Mun.  Corp.  §§  10-39.1 


1  Part  of  the  opinion  is  omitted. 


DEFINITION. 


MILLS  v.  WILLIAMS. 

(11  Ired.  Law,  558.) 

Supreme  Court  of  North  Carolina.    Dec.  Term, 
1850. 

Appeal  from  superior  court,  Rutlierford  coun- 
ty; Bailey,  Judge. 

B.  F.  Moore,  for  plaintiff.  N.  W.  Woodfin 
and  Mr.  Bynum,  for  defendant. 

PEARSON,  J.  In  181G,  the  legislature  es- 
tablished a  county  by  the  name  of  "Polk." 
In  pursuance  thereof  justices  of  the  peace 
were  appointed,  courts  organized,  and  a 
sheriff  and  other  county  otlicers  elected,  Avho 
entered  upon  the  discharge  of  the  duties  of 
their  respective  offices.  In  1848  the  act  of 
1846  was  repealed,  and  the  question  is  pre- 
sented, has  the  legislature  a  right,  under  the 
constitution,  to  repeal  an  act,  by  which  a 
county  is  established? 

From  the  formation  of  our  state  govern- 
ment, the  general  assembly  has,  from  time 
to  time,  changed  the  limits  of  counties,  and 
has,  over  and  over  again,  made  two  coun- 
ties out  of  one,  so  that  in  many  instances, 
even  the  name  of  the  old  county  has  been 
lost;  and  it  would  seem  to  an  unsophisticat- 
ed mind,  that,  where  there  is  the  power  to 
make  two  out  of  one,  there  must  be  the  cor- 
responding power  to  make  one  out  of  two. 
In  other  words,  as  the  legislature  has,  un- 
doubtedly, the  power  to  divide  counties, 
where  they  are  too  large,  that  there  is  the 
same  power  to  unite  them,  when  they  are 
too  small;  the  power  in  both  cases  being  de- 
rived from  the  fact  that  by  the  constitution 
"all  legislative  power  is  vested  in  the  gen- 
eral assembly,"  which  necessarily  embraces 
the  right  to  divide  the  state  into  counties  of 
convenient  size,  for  the  good  government  of 
the  whole.  Political  and  other  collateral 
considerations  are  apt  to  connect  themselves 
with  the  subject  of  corporations,  and  there- 
by give  to  it  more  importance  than  it  de- 
serves as  a  dry  question  of  law;  and  the  un- 
usual amount  of  labor  and  learning,  bestow- 
ed on  it,  has  tended  to  mystify  rather  than 
elucidate  the  subject.  Divested  of  this  mys- 
tery, and  measured  in  its  naked  proportions, 
a  corporation  is  an  artificial  body,  possess- 
ing such  powers,  and  having  such  capaci- 
ties, as  may  be  given  to  it  by  its  maker. 
The  purpose  in  making  all  corporations,  is 
the  accomplishment  of  some  public  good. 
Hence,  the  division  into  public  and  private 
has  a  tendency  to  confuse  and  lead  to  error 
In  the  investigation;  for,  unless  the  public 
are  to  be  benefited,  it  is  no  more  lawful  to 
confer  "exclusive  rights  and  privileges"  up- 
on an  artificial  body,  than  upon  a  private 
citizen. 

The  substantial  distinction  is  this:  Some 
corporations  are  created  by  the  mere  will  of 
the  legislature,  there  being  no  other  party  in- 
terested or  concerned.  To  this  body  a  por- 
tion of  the  power  of  the  legislature  is  dele- 


gated to  be  exercised  for  the  public  good, 
and  subject  at  all  times  to  be  modified,  chan- 
ged, or  annulled. 

Other  corporations  are  the  result  of  con- 
tract. The  legislature  is  not  the  only  party 
interested;  for  although  it  has  a  public  pur- 
pose to  be  accomplished,  it  chooses  to  do  it 
by  the  instrumentality  of  a  second  party. 
These  two  parties  make  a  contract.  The  leg- 
islature, for  and  in  consideration  of  certain 
labor  and  outlay  of  money,  confers  upon  the 
party  of  the  second  part  the  privilege  of  be- 
ing a  corporation,  with  certain  powers  and 
capacities.  The  expectation  of  benefit  to  the 
public  is  the  moving  consideration  on  one 
side;  that  of  expected  remuneration  for  the 
outlay  is  the  consideration  on  the  other.  It 
is  a  contract;  and,  therefore,  cannot  be  mod- 
ified, changed,  or  annulled  without  the  con- 
sent of  both  parties. 

So,  corporations  are  either  such  as  are  in-  f 
dependent  of  all  contract,  or  such  as  are  the 
fruit  and  direct  result  of  a  contract. 

The  division  of  the  state  into  counties  is  i 
an  instance  of  the  former.     There  is  no  con-  I 
tract,  no  second  party;    but  the  sovereign, 
for  the  better  government  and  management  j 
of  the  whole,  chooses  to  make  the  division 
in  the  same  way  that  a  farmer  divides  his 
plantation  off  into   fields  and   malies   cross 
fences,    where   he   chooses.     The   sovereign 
has  the  same  right  to  change  the  limits  of    / 
counties  and  to  make  them   smaller  or  lar-  j 
ger  by  putting  two  into  one,  or  one  into  two,  ' 
as  the  farmer  has  to  change  his  fields;    be-   / 
cause  it  is  an  affair  of  his  own,  and  there  is 
no  second  party,  having  a  direct  interest. 

A  railroad  is  an  instance  of  the  latter. 
Certain  individuals  propose  to  advance  cap- 
ital, and  make  a  road  by  which  it  is  sup- 
posed, the  public  are  to  be  benefited,  in  con- 
sideration that  the  legislature  will  incorpo- 
rate them  into  a  companj'  with  certain  privi- 
leges. The  bargain  is  struck;  neither  party 
has  a  right  to  modify,  change,  annul,  or  re- 
peal the  charter  without  the  consent  of  the 
other;  and  (still  to  borrow  an  illustration 
from  the  farmer)  he  has  in  this  case  leased 
out  his  fields  at  a  certain  rent,  and  has  no 
right  to  make  one  larger  and  another  small- 
er, without  the  consent  of  his  tenant. 

Roads  furnish  another  familiar  illustra- 
tion: The  county  court  has  a  public  road 
laid  out,  and  an  overseer  and  hands  appoint- 
ed. It  may  be  altered  or  discontinued  by 
the  county  authorities,  and  the  overseer  and 
hands  have  no  direct  interest  or  right  to  be 
heard  in  the  matter,  except  as  other  citizens. 
But,  if  the  legislature,  instead  of  acting  by 
its  agent,  the  county  authorities,  choose  to 
make  a  contract  with  certain  individuals, 
that,  if  they  will  raise  funds  and  make  a 
road,  they  shall  be  incorporated  with  the 
right  to  exact  tolls,  etc.,  then  the  road  can- 
not be  altered  or  discontinued  without  the 
consent  of  the  corporation. 

When  a  county  is  established,  it  is  done  at  f 
the  mere  will  of  the  legislature,  because   in  ' 


8 


PUBLIC    CORPORATIONS. 


Its  opinion,  the  public  good  will  be  thereby 
promoted.  There  is  no  second  party  direct- 
ly interested  or  concerned.  There  is  no  con- 
tract, for  no  consideration  moves  from  any 
one,  and  "without  a  consideration,  there  can- 
not be  a  contract.  The  discharge  of  certain 
duties  by  the  persons,  who  are  appointed 
justices  of  the  peace,  or  sheriff,  clerli,  or 
constable,  can,  in  no  sense  of  the  word,  be 
looked  upon  as  a  consideration  for  establish- 
ing the  county:  In  legal  parlance,  the  "con- 
sideration is  past,"— the  thing  is  done,  before 
their  appointment.  Some  act  for  the  honor 
of  the  station,  others  for  the  fees  and  per- 
quisites of  ottice;  but  their  so  doing  did  not 
form  a  consideration  for  the  erection  of  the 
county,  and  is  a  mere  incident  to  their  rela- 
tion as  citizens  of  the  county. 
,  It  was  ingeniously  argued  that,  upon  the 
erection  of  a  county,  certain  rights  attach 
by  force  of  the  constitution,  as  the  right  to 
have  at  least  one  member  in  the  house  of 
commons;  and  as  these  rights  are  conferred 
by  the  constitution  it  is  insisted  that,  having 
attached,  it  is  not  in  the  power  of  the  legis- 
lature to  take  them  away. 


The  argument  is  based  upon  a  fallacy.  It 
is  true,  the  constitution  invests  every  county 
with  certain  rights  as  incident  to  its  exist- 
ence as  a  county.  But,  by  no  sound  rea- 
soning, can  the  incident  be  made  to  override 
the  principle;  and  the  constitution,  by  con- 
ferring these  incidental  rights,  cannot  be  by 
any  fair  inference  made  to  interfere  with  the 
control  of  the  legislature  on  the  subject  of 
counties,  as  instruments  for  the  good  govern- 
ment and  management  of  the  whole  state. 

The  constitution  preordains  these  rights, 
but  they  are  put  expressly  as  incidents  to  the 
existence  of  counties;  and  although  they 
may  very  properly  enter  into  the  question  of 
expediency,  they  have  no  legislative  bearing 
upon  the  power  to  create  and  abolish  coun- 
ties as  may  to  the  wisdom  of  the  legislature 
seem  fit.  Such  statutes  are  not  the  restilt  of 
contracts.  There  is  no  second  party  who 
pays  a  consideration,  which  is  the  essence 
of  every  contract.  Terrett  v.  Taylor,  9 
Cranch,  43;  Dartmouth  College  v.  Wood- 
ward, 4  Wheat.  GG3;  Phillips  v.  Bury,  2 
Term  R.  346. 

Judgment  affirmed. 


LEGISLATIVE  AUTHORITY  OA^ER  CORPORATE  REVENUES. 


GUTZWELLER   v.   PEOPLE. 

(14  111.  142.) 
Supreme  Court  of  Illinois.     Dec.  Tenii,  1852. 
Error  to  circuit  court,  Madison  county. 

W.  Martin  and  H.  W.  Billings,  for  plaintiff 
in  error.  Levi  Davis  and  W.  H.  Herndon,  for 
People. 

,  CANTON,  J.  We  cannot  persuade  ourselves 
into  a  doubt  of  the  authority  of  the  legisla- 
ture to  take  from  the  city  of  Alton  the  power 
to  grant  licenses  to  sell  spirituous  lifpiors. 
That  right  v^'as  conferred  by  the  city  charter 
passed  in  18^37,  and  the  receipts  for  such  li- 
censes contributed  towards  a  fund  for  the  sup- 
port of  paupers  within  the  city.  It  is  within 
the  undoubted  jurisdiction  of  the  legislature  to 
determine  within  what  districts  of  country  the 
inhabitants  shall  be  associated  together,  for 
the  purpose  of  supporting  the  paupers  within 
the  prescribed  limits.  Whether  such  district 
shall  be  a  town,  city,  or  county,  or  even  the 
whole  state,  is  for  the  lawmaking  power  to  de- 
termine. It  was  as  much  the  right  of  the  legis- 
lature to  say  that  the  city  should  support  her 
paupers,  as  that  the  county  should  support 
hers.  So,  too,  it  was  for  the  legislature  to 
determine  who  should  issue  licenses  to  sell 
strong  hquors,  and  to  specify  whether  the 
money  thus  raised  should  be  devoted  to  the 
support  of  paupers,  or  the  maintenance  of  the 
police,  or  to  any  other  purpose.  It  gave  the 
city  no  more  a  vested  right  to  issue  licenses, 
because  the  legislature  specified  tlie  objects  to 
which  the  money  should  be  applial,  than  if  it 
had  been  put  into  the  general  fund  of  the  city. 
If  the  legislature  could  not  take  from  the  city 
authority  the  power  to  issue  licenses  it  cer- 
tainly had  no  right  to  deprive  the  counties  of 
the  same  authority.    Cities  are  as  much  the 


creatures  of  legislative  will  as  are  counties, 
and  what  may  be  done  with  the  one  they  have 
authority  to  do  with  the  other.  Trustees  v. 
Tatmau,  13  111.  30,  and  notes. 

Was  it  the  intention  of  the  legislature,  by 
the  law  of  1851,  to  deprive  the  city  of  Alton 
of  the  right  which  she  had  hitherto  enjoyed  of 
granting  these  licenses?  The  language  of  the 
law  is  so  explicit  that  it  leaves  but  one  pos- 
sible answer  to  the  question.  After  prohibit- 
ing the  sale  and  prescribing  the  penalty  for  a 
violation,  the  act,  in  the  sixth  section,  provides, 
that  "aU  laws  and  parts  of  laws  authorizing 
licenses  to  be  granted  to  keep  groceries,  for 
the  sale  of  vinous,  spirituous,  or  mixed  liquors, 
are  hereby  repealed,  and  the  provisions  of  this 
act  shall  extend  to  all  incorporated  cities  or 
towns  in  this  state,  anything  in  their  charters 
to  the  contrary  not\Aithstanding."  From  this  it 
is  too  plain  to  be  argued,  that  it  was  the  in- 
tention of  tlie  legislature  to  withdraw  all  au- 
thority which  had  ever  been  conferred  upon 
any  subordinate  governmental  agencies  to 
grant  licenses  for  the  sale  of  liquor;  and  that 
thenceforth  the  sale  of  ardent  spirits  in  less 
quantities  than  one  quart  should  be  absolute- 
ly prohibited.  By  this  law  the  power  is  as 
much  taken  from  the  city  of  Alton,  as  if  she 
had  been  expressly  named  in  the  act.  It  was 
pro  tanto  a  repeal  of  the  city  charter  and  was 
for  that  purpose  as  effectual  as  if  the  entire 
charter  had  been  taken  away;  and  if  the  legis- 
lature had  the  right  to  do  the  latter,  they  cer- 
tainly had  authority  to  do  the  former.  The 
license  set  up  as  a  defense  in  this  case  was  is- 
sued without  authority  of  the  law,  and  can 
afford  no  protection  to  the  defendant  for  the 
commission  of  the  act  which  w-as  In  express 
violation  of  the  law\ 

The  judgment  of  the  circuit  court  must  be 
affirmed.    Judgment  affirmed. 


10 


CREATION  OF  CORPORATION  BY  IMPLICATION. 


STATE  ex  rel.   BROKING  et  al.  v.  VAN 
VALEN,  Law  Judge. 

(27  Atl.   1070,   56  N.  J.   Law,   85.) 

Supreme  Court  of  New  Jersey.     Dec.  8,  1893. 

Original  application  In  the  name  of  the 
state  at  the  relation  of  Henry  Broldng  and 
others  for  mandamus  to  James  M.  Van  Valen, 
law  judge  of  the  court  of  common  pleas  of 
Bergen  county.  Heard  on  rule  to  show  cause. 
Denied. 

Argued  at  the  June  term,  1893,  before 
DErUE,  LIPPINCOTT,  and  ABBETT.  JJ. 

Luther  Shafer,  for  relators.  Peter  W. 
Stagg,  for  respondent. 

LIPPINCOTT,  J.i    *    *    *    *    *    The  con- 
tention of  the  relator  here  is  that  neither  of 
these  two  villages  are  incorporated,  but  cer- 
tainly the  statutes  relating  to  them  create  a 
board  of  trustees  as  a  go^erning  body,  and 
confer  corporate  powers   upon  them.     It   is 
true,  the  powers  ai-e  limited,  but  they  are  the 
■corporate  powers  usually  conferred  upon  mu- 
nicipalities of  this  grade.    It  is  not  necessary 
'  that  all  i<inds  of  municipal  powers  should  be 
,  conferred;    neither  is  it  necessary  that  the 
I  corporate  powers  bestowed  be  conferred  by 
express  legislative  grant,  in  order  to  create  a 
I  body    politic    and   coiporate.      Such    express 
words  are  in  many  instances  wanting;    but 
I  If,  from  the  whole  of  the  statutes,  incorpora- 
I   tion  is  inferred,  it  will  be  sufficient;    and  it 
does  seem   conclusive,  under  the  ordmary  in- 
terpretation of  the  language  of  the  statutes, 
that  corporate  powers  were  conferred.     The 
power  to  issue  bonds  in  the  name  of  the  vil- 
lage is  a  corporate  power,  and  if  they  are  not 
possessed  of  such  corporate  power  the  words 
of  the  statute  giving  the  power  to  issue  bonds 
are  utterly  meaningless.    The  village  of  Carl- 
stadt  was  incorporated  within  the  meaning  of 
section  GO  of  the  act  of  1891,  in  that  there 
was  an  institution  by  these  laws  to  regulate 
and  administer  the  internal  affairs  to  some 
extent  of  the  inhabitants  of  that  defined  lo- 
cality, in  matters  peculiar  to  the  village,  and 
not  common  to   the  people  of  the   state  at 
largo.     There  was  here  an  incorporated  in- 
strumentality to  exercise  powers,  perform  du- 
ties, and  execute  functions  which  were  strict- 
ly municipal  in  their  nature, — powers,  duties, 
and  functions  to  be  exercised  by  local  officers 
wltliin  well-defined  territorial  limits.     Dillon, 
in  his  work  on  Municipal  Corporations  (vol- 
ume 1,  §  42),  lays  down  a  rule  which  it  would 
appear    is    clearly    applicable    in    the   present 
'  case.     He  says:     "Although  corporations  in 
I  this  countrj-  are  created  by  statute,  still  the 
'  rule  Is  here  settled  that  not  only  private  cor- 

1  Part  of  the  opinion  is  omitted. 


porations  aggregate,  but  municipal  or  public  cor-  j 
porations  may  be  established  without  any  par-  ( 
ticular  foi-m  of  -words  or  technical  mode  of  ex-  I 
pression,  although  such  words  are  commonly 
employed.     If  powers  and  privileges  are  con- 
ferred upon  a  body  of  men,  or  upon  the  resi-  I 
dents  or  inhabitants  of  a   town  or  district,,  i 
and  if  these  cannot  be  exercised  and  enjoyed,   f 
and  if  the  purposes  intended  cannot  be  car-   ' 
ried  into  effect,  without  acting  in  a  corporate  / 
capacity,  a  corporation  is  to  this  extent  cre- 
ated by   implication.     The  question   is   upon 
the  intent  of  the  legislature,  and  this  can  be 
shown  constructively,  as  well  as  expressly." 
Inhabitants  v.  Wood,   13   Mass.   193.  was  a 
case    where  the   question   was   whether   the 
plaintiffs  were  a  corporate  body,  with  power 
to  sue.     They  were  not  incorporated  express- 
ly.   But  by  statute  the  inhabitants  of  the  sev- 
eral school  districts  were  empowered,  at  any 
meeting   properly    called,    to   raise    money    to 
erect,  repair,  or  purchase  a  schoolhouse,  to 
determine  its  site,  etc.,  the  majority  binding 
the  minority.     The  opinion  of  the  court  was 
that  the  plaintiffs  possessed  sufficient  corpo- 
rate powers  to  maintain  an  action  on  a  con- 
tract to  build  a  schoolhouse  and  to  make  to 
them  a  lease  of  land.     The  village   of   Carl- 
stadt,    upon    a    conti-act    to    pave    sidewalks, 
could  maintain  an  action;   and  so,  too,  could 
an   action   be    maintained    against   them    to 
levy  the  assessments  in  accordance  with  the 
statute,  to  pay  the  expense  of  such  paving. 
The  villages  here  were  possessed  of  limited 
corporate  powers  of  a  very  simple  grade,  but 
the  powers  conferred  were  no  less  corporate. 
Acts  of  the  legislature  have  been  frequently] 
passed  incorporating  towns  and  villages  with-/ 
in  townships  for  special  and  limited  purposes. 
In  such  cases  the  inhabitants  of  the  district  f 
incorporated    remained    inhabitants    of    the ' 
township  within  which  the  to^^n  is  situate 
for  all  purposes  except  those  within  the  ob-  1 
jects  of  the  municipal  government,  and  the 
jurisdiction  of  the  township  officers  contiu-  ' 
ues  over  them  only  so  far  as  not  inconsistent  i 
with  the  provisions  of  the  incorporating  act. 
State  V.  Troth,  34  N.  J.  Law,  387.     The  vil-  I 
lage   incorporation   is   of   the   lowest  grade,  1 
conferring  the  most  limited  powers.    It  ranks  ] 
below  the  borough  or  the  town,  but  within    ' 
its    range    its    incorporated    powers    are    as  | 
amply  protected  as  those  of  a  city.    The  con-  jl 
elusion  in  this  case  is  reached  that  the  vil- 
lages of  Carlstadt  and  New  Carlstadt  are  in- 
corporated villages  within  the  interpretation 
of  the  sixty-sixth  section  of  the  act  of  1801, 
as  amended,  and  they  cannot  take  advantage 
of  the  other   provisions   of   that  act,   or  be 
compelled  to  accept  them,  except  in  accord- 
ance   with    the    provisions    of    that   section. 
Therefore   the   mandamus   is   refused,    with 
costs. 


SUBMISSION  OF  CHARTER  TO  VOTE  OF  PEOPLE. 


II 


SMITH  V.  CPvUTCHER. 

(18  S.  W.  521,  92  Ky.  586.) 

Court  of  Appeals  of  Kentucky.    Feb.  13,   1892. 

Appeal  from  court  of  common  pleas.  Bell 
county. 

Action  by  A.  B.  Smith  against  Z.  H.  Crutch- 
er  to  restrain  defendant  from  acting  as  police 
judge.  From  a  judgment  dismissing  the  action 
plaintiff  appeals.    Atiirmed. 

J.  L.  Scott,  for  appellant. 

LEWIS,  J.  At  an  election  held  May  3,  1890, 
in  pursuance  of  the  charter  of  the  town  of 
Pineville  approved  in  1878,  and  of  an  amend- 
ment thereto  enacted  in  1888,  appellant,  being 
a  candidate  for  office  of  police  judge  of  said 
town,  received  a  majority  of  votes  cast, 
and  thereafter  received  a  commission,  and 
qualified  as  such.  But  April  16,  1S90,  an  "Act 
to  incorporate  the  city  of  Pineville,  in  Bell 
county,"  was  passed  and  approvetl,  by  which 
an  election  for  office  of  police  judge  was  pro- 
vided to  be  held  May  13,  1890,  which  was  held, 
and  appellee  was  elected  to  that  office;  and 
thereafter  appellant  instituted  this  action,  and 
obtained  an  injunction  restraining  appellee 
from  acting  as  such  poUce  judge  in  perform- 
ance of  the  duties  which  he,  having  quahfied, 
had  commenced.  But  the  injunction  having 
upon  final  hearing  been  dissolved,  and  judg- 
ment rendered  dismissing  the  action,  this  ap- 
peal is  prosecuted.  No  evidence  was  heard  or 
answer  filed,  and  the  single  question  is  wheth- 
er the  facts  stated  in  the  petition,  that  are  to 
be  taken  as  true,  are  sufficient  to  constitute 
any  cause  of  action.  There  can  be  no  ques- 
tion of  the  power  of  the  legislature  to  pass  the 
act  incorporating  the  "city  of  Pineville,"  which 


was  intended  and  had  the  effect  to  repeal  the 
existing  charter  of  the  "town  of  Pineville," 
and  to  regulate  municipal  affairs,  including  the 
qualification  and  election  of  officers,  without  j 
regard  to  the  previous  town  charter.  No  ques-  / 
tion  is  made  in  the  petition  of  the  qualifications 
of  appellee  for  the  office,  of  the  election  hav- 
ing been  held  on  the  day  fixed  in  the  act  of 
April,  1890,  nor  of  his  having  received  a  ma- 
jority of  the  votes  cast  at  that  election. 

It    does   not   make   any   difference   whether    / 
there  was  or  not,  as  alleged,  a  conspiracy  on 
the  part  of  speculators  to  induce  the  legislature 
to  pass  the  act  of  April,  1890,  nor  was  it  nee-    i 
essary  to  the  validity  of  thai  act  for  it  to  have   / 
been  approved  or  ratified  by   appellant,   the 
town  of  Pineville,  or  the  trustees  thereof,  in 
the  absence  of  a  provision  requiring  it  to  be    / 
submitted  to  the  people  or  trustees  of  the  town 
for  ratification  or  approval;  for,  as  the  statute 
appears  to  have  been  passed  by  the  legislature, 
and  approved,  it  must  be  treated  as  valid  and 
effectual  for  all  the  purposes  of  its  enactment. 

It  is,  in  a  general  way,  alleged  in  the  peti- 
tion that  an  unlawful  mob  or  conspiracy  was 
formed  between  appellee,  the  city  of  Pine- 
ville, and  a  large  number  of  persons,  for  the 
purpose  of  seizing  control  of  municipal  affairs 
of  Pineville,  without  authority  of  law,  and 
that  the  election  of  May  13th  was  held  with- 
out previous  notice.  But  if,  as  is  admitted  in 
appellant's  petition,  the  election  was  held  on 
the  day  fixed  by  the  act  of  April,  1890.  appel- 
lee was  a  citizen  of  Pineville,  had  the  qualifi- 
cations prescribed  by  the  city  charter,  and 
was  voted  for  by  the  legal  voters  of  the  city, 
he  is  entitled  to  the  office,  although  the  man- 
ner of  holding  the  election  may  have  been  in- 
formal; and  consequently  the  action  was  prop- 
erly dismissed.    Judgment  affirmed. 


12        CORPORATE  EXISTENCE  i^OT  OPEX  TO  COLLATERAL  ATTACK. 


COLER  et  al.  v.  DWIGHT  SCHOOL  TP. 
OF   RICHLAND   COUNTY. 

(55  N.  W.  587,  3  N.  D.  249.) 

Supreme   Court  of   North    Dakota.     April    25, 
1893. 

Appeal  from  district  court,  Richland  coun- 
ty;  D.  E.  Morgan,  Judge. 

Action  by  "William  N.  Color  and  William 
N.  Coler,  Jr.,  partners  tmder  the  firm  name 
and  style  of  W.  N.  Coler  &  Co.,  against 
Dwight  School  Township  of  Richland  Coimty, 
on  the  interest  coupons  of  certain  bonds. 
Judgment  for  plaintiffs.  Defendant  appeals. 
Modified  and  aflirmed. 

W.  E.  Purcell  and  L.  B.  Everdell,  for  ap- 
pellant. McCumber  &  Bogart,  (John  L. 
Pyle,  of  cotmsel,)  for  respondents. 

CORLISS,  J.  The  plaintiffs  have  recovered 
judgment  upon  a  number  of  coupons  repre- 
senting the  interest  on  bonds  issued  by  an 
alleged  municipal  coi-poration  known  as 
School  District  No.  22,  in  Richland  county,  in 
the  then  territory  of  Dakota.  Defendant, 
not  having  issued  them,  is  sought  to  be  held 
liable  on  these  bonds  and  their  interest  cou- 
pons, by  virtue  of  chapter  44,  Laws  1SS3.  At 
the  threshold  of  the  case  we  are  met  with 
the  proposition  that  there  is  no  liability  be- 
cause there  was  no  such  corporation  as  School 
District  No.  22  in  existence  when  these  in- 
struments were  executed  and  delivered.  It 
Is  asserted  that  the  proceedings  instituted  to 
effect  the  organization  of  such  a  municipal- 
ity were  fatally  defective.  It  is,  in  the  first 
place,  insisted  that  there  was  no  petition 
for  the  erection  of  the  district  presented  to 
and  filed  by  the  county  superintendent  of 
schools,  signed  by  a  majority  of  the  citizens 
residing  in  the  territory  to  be  affected.  Such 
a  petition  is  required  by  the  statute.  Chap- 
ter 14,  Laws  1879,  §  10.  Tlie  trial  judge  has 
found  that  there  was  such  petition  made, 
and  that  it  was  filed  as  required  by  law. 
This  finding  is  challenged.  We  think  that  the 
evidence  is  sufficient  to  sustain  it.  The  peti- 
tion itself  was  not  produced,  but  we  are 
satisfied  that  there  was  ample  evidence  to 
warrant  a  finding  by  the  trial  judge  that  it 
•could  not  be  found,  but  had  been  lost  or 
taken  away  by  some  former  county  superin- 
tcntlent,  either  the  one  with  whom  it  was 
originally  filed  or  by  one  of  his  successors. 
There  was  ample  evidence  to  justify  the  trial 
court  in  holding  that  diligent  search  had  been 
made  for  the  paper.  The  cotirt  therefore 
properly  admitted  secoudaiy  evidence  as  to 
the  signing  and  filing  of  the  petition.  This 
evidence  sustains  the  finding. 

It  is  next  contended  that  there  was  a  fail- 
ure to  comply  with  the  provisions  of  the 
statute  requiring  the  county  superintendent 
to  furnish  the  county  commissioners  of  the 
•county  with  a  written  descrijition  of  the 
bcundaries  of  the  district,  and  declaring 
that  such  description  must  be  filed  in  the 
office  of  the  register  of  deeds  before  such 
4listrict  should  be  entitled  to  proceed  with  its 


organization  by  the  election  of  school  dis- 
trict officers.  Chapter  14,  Laws  1879,  §  10. 
It  is  imdisputed  that  the  only  attempt  to 
comply  with  this  requirement  was  by  filing 
a  paper,  which  in  words,  figures,  and  fonu 
is  as  follows: 

"On  January  1st,  188  ,  the  above-named 
district  comprised  the  following  described 
lands,  viz.: 


Description. ,  See.  Toil';/ iJH(7(  1  Description    Sec.  Tomt  Rage 


For  snbsequ  ent   chau    ges     soe  oppositi-jpap- e 


"Plat  of  School  District  No.  22. 

Township Ranee Town.ship  132.  Rai)"'e49 

o 

6  i   5  i   4  :   3  :   :;  I   1 

6  j  5  1  4  :  3  i   2  i   1 

S  i 

7  :  8  :  9  ilO  ill  :i2 

7  i  8  :  9  ilO  :11  =12 

f^^ 

O 

18  :17  :i6  il.i  114  :13 

18  =.17  :i6  :15  ;i4  :13 

^ 

19  '20  '21  ■  22  •  23  °-3i 

c 

^ 

30  :29  -28  i27  :26    25 

30  :29  128  :27  :26  125 

cr. 

31  :32  :33  :34  :35    36 

31  :32  133  :34  :S5  m 

6:5:4:3:2:1 

6    [sj  4  1  3  j  2  1  1 

? 

7  :  8  :  9  ilO  -11  :i2 

7  =  8  =  9  =10  =11  =12 

B 

IS  :i7  =16  :15  -14  il3 

18  =17  =16  =15  114  il3 

e-< 

s 

19   :20  i21  :22  i23  :24 

19  120  :21  i22  :23  124 

C 

rfO  :29  :28  :27  :26  125 

SO  :29  i28  :27  i;6  :25 

? 

31  :32  :33  :34  135  i3S 

!1  :32    3!  1 34  :35  :36 

TowDHliip Ranse Township Range., 


"Organized  October  24th.  ISSl,  by  J.  H. 
Kennedy,  Co.  Supt.  of  Schools." 

We  are  clear  that  tlus  does  not  contain 
a  written  description  of  the  bounilaries  of 
the  district.  It  merely  purports  to  be  a 
plat  of  the  district.  Whether  the  district 
is  within  or  without  the  lines  of  the  plat 
is  left  to  speculation.  But  does  it  nec- 
essarily follow  that  the  organization  of  the 
district  is  thereby  rendered  void?  The 
county  superintendent  creates  the  district. 
His  decision,  embodied  in  written  form,  is 
the  act  which  calls  the  new  corporation  into 
being,  provided  he  has  been  given  author- 
ity to  proceed  by  the  presentation  and  filing 
of  the  proper  petition.  The  statute  requires 
him  to  keep  a  record  of  his  official  acts, 
(section  12,)  and  it  is  to  this  record  that  the 
court  must  look  to  see  if  the  district  has 
been  formed.  The  record  so  kept  by  the 
coimty   superintendent   shows  the   following 

•Not  included. 


CORPORATE  EXISTENCE  NOT  OPEN  TO  COLLATERAL  ATTACK. 


13- 


entry:  "District  No.  22,  organized  October 
24th,  1881,  and  includes  the  following  de- 
scribed territory:  South  half  of  sections  19, 
20,  21,  22,  and  23,  and  all  of  sections  26,  27, 
28,  29,  30,  31,  32,  33,  34,  and  3"),  in  township 
133,  range  49,  and  one-half  of  section  5,  in 
township  132,  range  49,  and  sections  24,  25, 
and  3G,  township  133,  range  50."  The  stat- 
ute does  not  declare  tliat  furnishing  the 
county  commissioners  with  a  written  descrip- 
tion of  the  boundaries,  and  the  filing  thereof 
in  the  office  of  the  register  of  deeds,  are  con- 
ditions precedent  to  the  existence  of  the  dis- 
trict. Quite  the  contrary.  The  statute  refers 
to  the  district  as  a  corporation  already 
formed  before  the  doing  of  these  acts.  It 
does  not  withhold  corporate  life  until  the 
description  is  furnislicd  and  filed.  It  merely 
provides  that  the  district  shall  not  be  enti- 
tled to  proceed  witli  its  organization  by  the 
election  of  school  officers  before  these  acts 
are  perfornu'd.  The  corporation  exists;  the 
district  officers  exist;  but  no  election  of 
officers  can  be  held  until  after  certain  acts 
are  performed.  This  is  tlie  plain  reading  of 
the  statute.  Said  the  court  in  School  Di- 
rectors of  Union  School  Dist.  No.  4  v.  School 
Directors  of  New  Union  School  Dist.  No.  2, 
(111.  Sup.)  28  N.  E.  Rep.  49,  at  page  52:  "And 
the  failure  of  the  township  trustees  to  file 
with  the  county  a  map  showing  the  lands 
embraced  in  the  new  district  will  not  have 
the  effect  to  destroy  its  corporate  existence, 
or  to  prevent  the  directoi-s  of  a  new  district 
from  levying  taxes  for  school  purposes  there- 
in;" citing  School  Directors  of  Dist.  No.  5 
V.  School  Directors  of  Dist.  No.  10,  73  111. 
250.  A  municipal  corporation  may  have  life, 
although  there  are  no  officers  in  office.  No 
claim  is  made  that  the  officers  who  in  fact 
signed  the  bonds  and  coupons  were  not  at 
least  de  facto  officers  of  the  district,  provided 
tliere  was  a  legal  organization  thereof.  Nor 
could  it  be  successfully  contended  that  such" 
officers  were  not  at  least  de  facto  officers, 
there  having  been  an  attempt  to  comply 
with  the  law  requiring  the  furnishing  and  fil- 
ing of  the  description  before  officers  should  be 
elected,  and  the  officers  being  in  actual  pos- 
session of  their  respective  offices  and  exer- 
cising the  functions  thereof,  and  there  being 
no  other  persons  pretending  to  lay  claim  to 
such  offices.  Nor  would  we  reach  a  different 
conclusion  were  we  of  opinion  that  tlie  or- 
ganization of  the  district  was  so  d(>fective 
that  the  proceedings  would  be  set  aside  on 
certiorari,  or  the  right  of  the  district  to  act 
as  such  would  be  denied  by  judgment  in  quo 
warranto.  At  the  time  these  bonds  were  is- 
sued the  district  was  acting  as  a  de  facto 
district  under  at  least  color  of  organization. 
It  had  elected  its  district  officers;  iiad  hi  1  1  its 
district  meetings;  had  voted  to  borrow  mon- 
ej'  to  build  a  schoolhouse;  and  it  appears  to 
bo  undisputed  that  the  proceeds  of  these 
bonds  were  used  for  that  purpo.'^.e,  and  the 
inliubitants  received  the  benefit  thereof.  A 
schoolhouse  has  been  buUt,  and  school  has 


been  taught  therein.  To  allow  the  defense 
that  the  proceedings  in  the  organization  were 
defective  to  defeat  the  debt  represented  by 
these  bonds  would,  under  these  circumstan- 
ces, be  to  sanction  repudiation  of  an  honest 
obligation.  We  are  firm  in  the  opinion  that 
the  legality  of  the  organization  of  a  munic- 
ipal corporation  cannot  be  thus  collaterally 
attaclied.  Citizens  of  the  district  wlio  are 
opposed  to  the  formation  of  such  a  corpora- 
tion are  not  without  remedy.  Certiorari  will 
reach  the  action  of  the  countj'  superintend- 
ent when  without  jurisdiction.  People  v. 
Board  of  Sup'rs,  41  :Mich.  G47,  2  N.  W.  Rep. 
904.  The  statute  allows  an  appeal.  Section 
25,  c.  14,  Laws  1879.  The  corporate  ex- 
istence may  be  attacked  by  quo  warranto. 
State  v.  P>radford,  32  Vt.  50;  People  v.  Clark, 
70  N.  Y.  518;  Cheshire  v.  Kelley,  (111.  Sup.V 
6  N.  E.  Rep.  48G;  Comp.  Laws,  §  5348,  subd. 
3;  Territory  v.  Armstrong,  6  Dak.  22G.  50 
N.  W.  Rep.  832.  The  evils  resulting  from 
a  doctrine  which  would  permit  the  legality 
of  the  organization  of  a  municipal  cori)0- 
ration  to  be  inquired  into  collaterally— in  au 
action  to  enforce  a  debt,  in  a  proceeding  to 
collect  a  tax  levied  by  the  de  facto  corporation, 
or  in  a  litigation  over  a  tax  title  growing  out 
of  a  tax  imposed  by  such  municipality — would 
be  as  great  as  the  evils  which  would  flow 
from  the  collateral  inquiry  into  the  title  of  a 
person  to  an  office,  the  functions  of  which 
he  is  in  fact  exercising.  This  same  argument 
reaches  the  objection  that  no  sufficient  peti- 
tion was  ever  presented  and  filed,  even  as- 
suming that  the  record  sustained  the  claim- 
that  this  requirement  of  the  statute  was  not 
complied  with.  It  does  not  follow,  because 
the  organization  was  illegal  for  want  of 
power  in  the  comity  superintendent,  that  at 
all  times,  in  every  species  of  litigation,  and 
by  any  person,  the  existence  of  the  de  facto 
district  can  be  assailed.  It  is  no  more  es- 
sential to  the  exercise  by  tlie  county  superin- 
tendent of  this  power  that  a  petition  should 
be  filed  than  that  it  should  be  signed  by  a 
majority  of  the  citizens  residing  in  the  dis- 
trict. It  is  the  fact,  and  not  the  decision  of 
the  superintendent  that  the  fact  exist^s,  which 
gives  him  jurisdiction.  A  petition  is  filed 
lacking  the  signature  of  one  citizen  to  make 
it  a  petition  signed  by  a  majority  of  the  cit- 
izens; in  all  other  respects  the  organization 
is  regular;  bcmds  are  issued,  a  schoolhouse 
built,  and  school  taught.  Is  all  this  to  be  ig- 
nored, to  be  treated  as  illegal,  because  there 
was  no  de  jure  district?  Who  are  the  real 
parties  interested  in  defeating  such  a  debt? 
Tlie  taxpayers  within  the  district.  In  what 
position  are  those  to  object  who  participated 
in  the  organization?  They  have  attempted 
to  form  a  district.  They  for  a  time  believed 
that  they  had  formed  it.  They  elect  offi- 
cers; borrow  money  on  bonds  for  district 
purposes;  build  a  schoolhouse  therewith; 
and  use  tho  monej'  for  other  purposes  con- 
nected   with   the   functions   of    the   district. 


14         CORPORATE  EXISTENCE  NOT  OPEN  TO  COLLATERAL  ATTACK. 


On  what  principle  can  the  existence  of  the 
district  be  denied  by  them  for  their  benefit? 
If  any  within  the  district  refrained  from  af- 
firmative   action,    still    they    are    chargeable 
with  passive  acquiescence  when  they  might 
have    acted,    and    acted    effectually,    against 
the  de  facto   existence   of  the  district,   and 
thus  have  prevented  an  imposition  upon  the 
innocent   who  were  justified  in  taking  that 
to  bo  a   legal  district  which  was  acting  as 
such,  and  to  all  appearances  was  warranted 
in   acting  as  such.    Those  who   were   silent, 
when  in  conscience  they  shoidd  have  spolcen, 
have  no  claim  upon  the  equity  of  this  court. 
They  did  not  protest;    they  did  not  appeal; 
they  did  not  resort  to  certiorari;    they  made 
no  effort  to  have  the  district  attorney  ovei"- 
throw  this  de  facto  district  by  quo  warranto; 
and  when  the  bonds  were  voted  for  they  ap- 
pealed to  no  chancellor  to  protect  their  prop- 
erty from  an  illegal  debt.    Not  only  the  con- 
siderations which  lie  at  the  foundation  of  the 
rule  protecting  the  public  in  dealing  with  a 
de   facto   officer,   but  also   a  principle   very 
analogous  to  that  of  equitable  estoppel,  pro- 
tects those  bondholders  against  repudiation 
under  the  forms  of  the  law.    If  there  cannot 
be  a  de  facto  school  district,  there  cannot  be 
a  de  facto  city.    If  illegality  in  the  proceed- 
ings to  effect  organization  is  fatal  to  the  ex- 
istence of  a  district,  it  is  equally  as  fatal  to 
the  existence  of  a  municipal  corporation  of  a 
higher  grade.    Given  a  case  where  the  de- 
fects in  the  incorporation  of  the  city  are  as 
fatal  as  in  this  case,  and  then  deny  to  that 
corporation  any  effect,  although  a  city  gov- 
ernment is  in  fact  inaugurated  and  carried 
on,  and  the  consequences  would  be  intoler- 
able.     Open     and     acknowledged     anarchy 
would   for  some   reasons  be  preferable.    In 
after  years  tax   titles   would   be   destroyed; 
every   officer  of  the  city   would   be   a   tres- 
passer when  the  discharge  of  what   would 
be  his  duty  on  the  theory  of  the  existence 
x>t    the    corporation    led    to    an    interference 
with  the  property  or  person  of  others.    Ev- 
ery police  or  other  peace  officer  and  every 
magistrate  acting  under  the  supposed  author- 
ity of  the  city  government  would  be  liable 
for   extortion,   for   assault   and    battery,    for 
false  imprisonment,  and  could  be  prosecuted 
criminally  for  acts  done  in  good  faith  in  the 
enforcement  of  the  criminal  law.    An  army 
X)f  creditors   whose   savings  have   gone   into 
the  city  treasury,  and  through  the  treasury 
Into   public   buildings   and    other    public   im- 
provements, find,  to  their  astonishment  and 
dismay,  tliat  they  have  received  in  exchange 
boautirully  lithograi)hed  but  worthless  bonds 
as  souvenirs  of  their  abused  confidence.    All 
that  has  been  done  in  good  faith  under  color 
of  law  is  only  barefaced  usurpation,  and  to 
be  treated   as  such   for  all   i)urposes.    Such 
a  doctrine  would  be  the  author  of  confusion, 
injustice,  and  almost  endless  litigation.    The 
imagination    cannot    embrace    all    the    gross 
wrong  to  which  it  wouhl  lead  when  pushed, 
as    it    must   be,    to    its    logical    cou.'^equences. 


On  the  other  hand,  no  great  injury  can  re-  ' 
suit  to   the  citizens  or  state  by  recognizing 
a  de  facto  corporation;    one  acting  as  such 
under  color  of  organization.    If  the  law  is   I 
disregarded  in  the  attempt  to  organize  the   ' 
municipality,    the    violation    of    law    always 
can  be  nipped  in  the  bud  by  appropriate  ju- 
dicial proceedings.    We  find  that  our  views 
are  by  no   means  novel.    The  rule  that  the 
existence  of  a  de  facto  municipal  corporation  I 
cannot  be  collaterally  assailed  has  frequently  i 
been  recognized  and  applied  by  the  courts. 
Stuart  V.  School  Dist..  30  Mich.  G9;   People  v. 
Maynard,  15  Mich.  470;    Krutz  v.  Town  Co., 
20  Kan.  397;    Tisdale  v.  Town  of  Minonk,  4G 
111.  9;    Geneva  v.  Cole,  61  111.  307;    People  v. 
Farnham,   35   111.    5G2;    Jameson   v.    People, 
16  111.  257;    Sheriy  v.  Gilmore,  (Wis.)  17  N. 
W.  Rep.  252;    State  v.   Railroad  Co.,  (Nev.) 
25   Pac.    Rep.    296;     School    Dist.    No.    2    v. 
School  Dist.  No.  1,  (Kan.)  26  Pac.  Rep.  43; 
Railroad  Co.  v.  Wilson,  (Kan.)  6  Pac.   Rep. 
281;  Clement  v.  Everest,  29  Mich.  19;  Stockle 
V.  Silsbee,  41  Mich.  615,  2  N.  W.  Rep.  900; 
Burt  V.   Railroad   Co.,   31   Minn.   472,   18   N. 
W.    Rep.   285,   289;     Mendenhall    v.    Burton, 
(Kan.)   22  Pac.   Rep.   558;     School  Directors 
of  Union  School  Dist.   No.  4  v.    School  Di- 
rectors  of   New   Union   School   Dist.    No.    2, 
(111.  Sup.)  28  N.  E.  Rep.  49;   15  Amer.  &  Eng. 
Enc.    Law,   965;     1   Dill.    Mun.    Corp.    §    43; 
President,    etc.,    v.    Thompson,    20    111.    197; 
Town  of  Enterprise  v.  State,  (Fla.)  10  South. 
Rep.  740.    See  2  Dill.  Mun.  Corp.  §  894;   State 
V.  Weatherby,  45  Mo.   17;    Board  v.  Lewis, 
10  Sup.  Ct.   Rep.  286;    Austrian  v.  Guy,  21 
Fed.   Rep.  500.    In  some  of  the  cases  time  / 
seems  to  have  been  considered  an   element 
of  some  importance,  but  the  public  may  as  | 
effectually  be  deceived  by  a  de  facto  organ-   , 
ization  the  day  after  it  is  complete  as  a  dec- 
ade thereafter.    The  time  a  de  facto  officer 
has  been  in  possession  of  an  office  is  never 
regarded  as  controlling.    He  is  as  much  an    \ 
officer,    as  to   the  public,   the   day   after  he    I 
intnides  into  the  office  as  a  year  later.    "The 
same  rule  which  recognizes  the  rights  of  offi-    [ 
cers    de    facto,    recognizes    corporations    de    j 
facto,  and  this  is  nect'ssary  for  public  and    i 
private    security."    Clement    v.    Everest,    29 
Mich.  19-23. 

We  have  treated  this  power  as  if  the  ac- 
tion were  iipon  the  bonds  themselves,  be- 
cause the  holders  of  interest  coupons  may  re- 
cover if  they  coifid  maintain  an  action  on 
the  bonds  under  the  same  circumstances.  It 
is  also  urged  that  Uiere  was  a  failure  to  com- 
ply with  certain  conditions  precedent  to  the 
valid  exercise  of  the  power  conferred  upon 
such  districts  by  law  to  borrow  money  on 
district  bonds.  The  statute  regidating  the 
issuing  of  such  bonds  provides,  in  substance, 
that  they  can  be  issued  only  when  a  majority 
of  the  electors  of  the  district  present  and 
voting  at  a  district  meeting  shall  vote  to 
issue  the  same.  Chapter  24,  Laws  18S1,  §  1. 
Section  2  of  this  act  provides:  "Before  the 
question  of  issuing  bonds  shall  be  submitted 


CORPORATE  EXISTENCE  NOT  OPEN  TO  COLLATERAL  ATTACK.  15 


to  a  vote  of  the  district,  notices  shall  be  i 
posted  in  at  least  three  public  and  conspicuous 
places  in  said  district,  stating  the  time  and  j 
place  of  meeting,  the  amount  of  bonds  that 
will  be  recpiired  to  be  issued,  and  the  time 
in  which  they  shall  be  made  payable,  at  j 
least  twenty  days  before  the  time  of  meeting; 
and  the  voting  shall  be  done  by  means  of  ' 
Avritteu  or  printed  ballots,  and  all  ballots  de- 
posited in  favor  of  issuing  bonds  shall  have 
thereon  the  words  'for  issuing  bonds,'  and 
those  opposed  thereto  shall  have  thereon  the 
words  'against  issuing  bonds;'  and  if  the  ma- 
jority of  all  the  votes  cast  shall  be  in  favor  of 
issuing  bonds,  the  school  board,  or  other  prop- 
er officei-s,  shall  forthwith  proceed  to  issue 
bonds  in  accoixlance  with  the  vote;  but  if  a 
nrajority  of  all  the  votes  east  are  opposed  to 
issuing  bonds,  then  no  further  action  can  be 
had,  and  the  question  shall  not  be  again  sub- 
mitted to  vote  for  one  year  thereafter:  pro- 
vided, however,  that  the  question  of  issuing 
bends  shall  not  be  sul)mitte<.l  to  a  vote  of  the 
district,  and  no  meeting  shall  be  CiiUed  for 
that  purpose,  vmtil  the  district  school  board  i 
shall  have  been  so  petitioned,  in  writing,  by  j 
a  majority  of  tlie  resident  electore  of  said  i 
school  district."  It  is  contended  that  the 
school  board  was  not  petitioned  to  submit  the 
question  of  issuing  the  bonds  to  a  vote  as  re- 
quired by  the  proviso  to  section  2.  We  thinlc 
the  defendant  is  not  in  position  to  raise  this 
point.  The  plaintiffs  are  bona  fide  holdei-s 
of  the  coupons.  The  recital  in  the  bonds  is 
therefore  fatal  to  this  defense.  Upon  their 
face  appeai-s  the  following  statement:  "This 
bond  is  issued  on  the  24th  day  of  June,  1SS2, 
by  School  District  No.  22,  county  of  liichland, 
D.  T.,  for  building  and  furnishing  a  school- 
house,  under  and  in  pursuance  of,  and  in 
strict  confonnity  with,  the  provisions  of  an 
act  of  tlie  legislative  assembly  of  the  terri- 
tory of  Dakota,  entitled  'An  act  to  empower 
school  districts  to  issue  bonds  for  building 
schoolhouses,'  approved  March  3,  18S1,  and 
of  a  vote  of  said  district  at  a  special  meeting 
had  on  the  29th  day  of  November,  ISSl." 
Upon  the  back  of  each  bond  is  the  following 
certificate,  signed  by  the  clerk  of  the  dis- 
trict: "I  certify  that  the  within  bond  is 
issued  in  accordance  with  a  vote  of  School 
Distiict  No.  22,  of  Richland  county,  Dakota 
territoiy,  at  a  special  meeting  held  on  the 
29th  day  of  November,  A.  D.  1881,  to  issue 
bonds  to  the  amount  of  twelve  hundreil  dol- 
lars." It  is  obvious  from  the  statute  that  the 
otficers  by  whom  the  bunds  are  to  be  issued 
are  intnistod  with  the  duty  of  determining 
whether  the  statute  has  been  complied  with 
as  to  all  matters  necessary  to  give  them  au- 
tliority  to  issue  the  bonds.  Their  statement 
embodied  in  these  bonds  therefore  estops  the 
district  and  its  successors  from  showing 
aught  to  the  contrary.  The  rale  and  the 
reason  lor  it  liave  been  so  often  stated,  and 
are  so  well  known  to  the  profession,  that  it 
will  sutlice  to  cite  some  of  the  numerous  au- 
thorities on  the  point:    Inhabitants  v.  Mor- 


rison, 133  U.  S.  523,  10  Sup.  Ct.  Rep.  333; 
Oregon  v.  Jennings,  119  U.  S.  74-92,  7  Sup. 
Ct.  Rep.  124;  Comity  of  Moultrie  v.  Rock- 
ingham, etc..  Bank,  92  U.  S.  631;  Venice  v. 
Murdock,  Id.  494;  Town  of  Colona  v.  Eaves, 
Id.  484;  Dixon  County  v.  Field,  111  U.  S. 
S3,  4  Sup.  Ct.  Rep.  315;  Humboldt  Tp.  v. 
Long,  92  U.  S.  042;  Commissioners  of 
Knox  Co.  V.  Aspinwall,  21  How.  539; 
Fulton  V.  Town  of  Kiverton.  (Minn.)  44  N. 
W.  Rep.  257;  15  Amer.  &  Eng.  Enc.  Law, 
1295  et  seq.;  Burr.  Pub.  Secur.  299  et  seq. 
It  is  not  necessary  that  the  power  to  deter- 
mine these  facts  should  have  been  expressly 
conferred  upon  the  district  officers  by  the 
statute.  "It  is  enough  that  full  control  in 
the  matter  is  given  to  the  otficers  named." 
Inhabitants  v.  Morrison,  133  U.  S.  523,  10 
Sup.  Ct.  Rep.  333;  Fulton  v.  Town  of  River- 
ton,  (Minn.)  44  N.  W.  Rep.  257.  Nor  is  it 
essential  that  the  statement  should  set  forth 
in  detail  that  all  of  the  vai-ious  conditions 
precedent  have  been  complied  with.  It  is 
sutficient  if  it  is  stated  that  the  bond  was 
issued  in  pursuance  of  the  statute,  designat- 
ing it  in  such  a  manner  as  to  identify  it. 
This  is  in  legal  effect  a  statement  that  each 
and  all  of  the  necessaiy  preliminary  steps 
were  talc  en  to  authorize  the  issue  of  the 
bonds.  Inhabitants  v.  MoiTison,  133  U.  S. 
523,  10  Sup.  Ct.  Rep.  333;  Dixon  Co.  v. 
Field,  111  U.  S.  83,  4  Sup.  Ct.  Rep.  315;  15 
Amer.  &  Eng.  Enc.  Law,  1300;  County  of 
Moultrie  v.  Rockingham,  etc.,  Banlv,  92  U. 
S.  631.  But  the  statement  went  much  fur- 
ther. It  asserted  that  the  bonds  had  been 
issued  under  and  in  pui-suance  of,  and  in 
strict  conformity  with,  the  act  authorizing 
their  issue,  "and  of  a  vote  of  said  district  at 
a  special  meeting  had  on  the  29th  day  of 
November,  1881."  The  certificate  indoreed 
on  the  bonds  by  the  clerk  was  required  by 
the  statute  to  be  indorsed  thereon.  Chapter 
24,  Laws  1881,  §  4.  The  statute  specifies 
what  the  certificate  shall  contain,  and  this 
provision  was  strictly  complied  with  in  the 
issuing  of  these  bonds.  This  reiiuirenient 
indicates  that  it  was  for  the  protection  of  the 
purchaser  of  the  bonds,  who  might  implicitly 
rely  upon  the  clerk's  certificate  as  conclusive 
evidence  that  all  necessary  preliminary  steps 
had  been  legally  and  rt-gularly  taken. 

We  come  now  to  the  claim  that  the  plain- 
tiffs have  sued  the  wrong,  corporation.  The 
defendant  did  not  issue  these  bonds.  If  lia- 
ble at  all,  it  must  be  by  virtue  of  some  stat- 
ute. Chapter  44,  Laws  1883,  is  pointed  to  as 
the  act  which  binds  the  defendant  to  pay 
these  bonds.  This  law  provides  for  a  new 
system.  The  district  school  system  was  to 
be  abolished,  and  the  township  school  sys- 
tem to  take  its  place.  Under  this  statute  it 
was  the  duty  of  the  board  of  county  com- 
missioners to  divide  all  organized  counties 
into  school  townships.  The  finding  of  the 
court  is  that  on  May  23,  1883,  the  commis- 
sioners of  Richland  county  duly  organized 
the  school  township  of  D wight  in  that  couu- 


16 


CORPORATE  EXISTENCE  JTOT  OPEX  TO  COLLATERAL  ATTACK. 


ty,  and  that  the  territory  -within  this 
new  school  township  embraced  nearly  all  of 
the  territory  of  the  old  school  district 
No.  22;  and  that  the  schoolhouse  and 
school  furniture  belonging  to  the  district 
were  received  into  and  are  owned  by  tlie  de- 
fendant. There  is  sufficient  evidence  to  sup- 
port the  finding  that  the  schoolhouse  belong- 
ing to  district  No.  22  is  witliin  the  territorial 
limits  of  tlie  defendant.  Under  these  facts 
the  linbiUty  of  the  defendant  on  these  bonds 
would  be  clear,  under  section  144  of  the  act, 
were  it  not  for  the  provisions  of  section  136, 
to  wliicli  we  will  in  a  moment  refer.  Section 
144  provides  as  follows:  "Every  school  town- 
ship slmll  be  liable  for,  and  shall  assume  and 
pay  fully,  according  to  their  legal  tenor,  ef- 
fect, and  obligation,  all  the  outstanding 
bonds  and  the  interest  thereon,  of  every 
school  district,  the  schoolhouse  and  furnitui-e 
of  wliich  are  received  and  inchided  within 
the  school  township,  and  owned  thereby,  the 
same  as  if  said  bonds  had  been  issued  by 
said  scliool  township;  and  the  law  wliich  au- 
thorized the  school  district  to  issue  bonds 
shall  apply  to  the  school  township  the  same 
as  if  it  had  originally  been  authorized  to  is- 
sue, and  had  issued,  the  said  bonds.  The 
bonds  shall  be  deemed  in  law  the  bonds  of 
the  school  township,  with  the  same  validity 
for  securing  and  enforcing  the  payment  of 
principal  and  interest  that  they  would  have 
had  against  the  district  that  issued  them." 
There  can  be  no  question  as  to  the  power  of 
Ine  legislature  to  impose  upon  a  new  munici- 
pality, which  includes  all  or  a  portion  of  the 
territory  of  an  old  municipal  coi-poration,  lia- 
bility for  the  debts  of  the  old  corporation, 
wliere  the  property  of  the  latter  is  turned 
over  to  and  received  by  the  former  under  the 
law.  ]Mt.  Pleasant  v.  Becliwith,  100  U.  S. 
514;  1  Dill.  Mun.  Corp.  §  G3;  State  v.  City  of 
Lake  Cily,  25  Minn.  404;  City  of  Winona  v. 
School  Dist.  No.  82,  40  Minn.  13,  41  N.  W. 
Rep.  5o'J;  Demattos  v.  City  of  New  What- 
com, (Wa.sli.)  29  Pac.  Rep.  933;  liaramie 
County  V.  Albany  County,  92  U.  S.  307; 
Schribor  v.  Town  of  Langlade,  (Wis.)  29  N. 
W.  Kep.  547,  and  cases  cited  in  opinion; 
Kniglit  v.  Town  of  Ashland,  (Wis.)  21  N.  W. 
Rep.  05-70.  See,  also,  note  to  State  v.  Clev- 
enger,  [Neb.,  43  Js.  W.  Rep.  243,]  in  20  Amer. 
St.  Rep.  077.  Indeed,  many  of  the  cases  go 
much  further  than  is  necessary  to  support 
tliis  legislation.  But  it  is  contended  that 
School  District  No.  22  has  not  ceased  to  ex- 
ist; tliat  the  organization  of  the  defendant 
is  not  complete;  and  tlie  argument  from  these 
premises  is  that  district  No.  22,  and  not  the 
defendant,  is  at  present  liable  for  these 
bonds.  The  section  of  the  statute  on  Avhich 
tlie  claim  rests  is  section  136.  It  provides  as 
follows:  "The  adoption  of  the  system  herein 
provided,  and  the  pa.ssage  and  approval  of 
this  act,  shall  not  have  the  effect  to  discon- 
tinue, abolish,  and  render  null  such  school 
districts  or  their  organization  as  they  may 
now  exist  in  any  county,  but  they  shall  con- 


tinue to  exist,  and  their  officers  to  act  as 
such,  in  law  and  fact,  until  the  school  town- 
ship organization  is  complete,  so  far  as  it  in- 
cludes any  particular  district  or  districts,  or 
the  larger  part  of  any  particular  district. 
And  such  township  organization  shall  not  be 
deemed  complete,  nor  such  districts  so  cease 
to  exist,  and  their  officers  to  act  as  such,  un- 
til all  matters  between  the  district  and  the 
township  are  adjusted,  and  the  property  de- 
livered, funds  paid  over,  and  an  adjustment 
is  readied  for  the  equalization  of  taxes  and 
!  propertj^  between  the  districts  wliich  enter 
into  the  school  township,  so  far  as  such  taxes 
and  property  remain  permanent  in  houses, 
sites,  furniture,  and  other  parts  of  houses 
and  grounds."  The  next  two  sections  pre- 
scribe the  procedure  by  which  the  equaliza- 
I  tion  of  taxes  is  to  be  determined,  and  the 
j  rules  which  are  to  govern  such  equalization. 
I  Now,  it  is  quite  clear  to  our  mind  that  sec- 
!  tion  136  was  incorporated  in  the  statute 
merely  to  keep  the  old  districts  alive,  for  the 
purpose  of  adjusting  their  rights  among 
themselves,  so  mat  taxpayers  living  in  each 
portion  of  the  new  township  which  formerly 
constituted  a  school  district  should  not  pay 
more  of  the  aggregate  of  the  old  indebted- 
ness of  the  several  districts  embraced  in  the 
township  than  would  be  equitable,  consider- 
ing the  rights  of  the  taxpayers  of  the  other 
districts,  so  included,  to  the  same  treatment. 
The  school  boards  of  the  several  old  districts 
consiituted,  with  the  county  superintendent, 
a  body  to  adjust  these  matters,  and  it  was 
necessary  to  keep  the  districts  alive  for  this 
special  puri^ose  after  the  organization  of  the 
township.  The  legislature  intended  to  work 
an  immediate,  radical  revolution  in  the  school 
system  for  the  whole  territory.  We  do  not 
believe  that  they  contemplated  that,  while  a 
long  drawn  out  contest  was  going  on  to  set- 
tle these  questions  between  the  old  districts, 
this  new  system  should  be  held  in  abeyance. 
Moreover,  there  would  be  no  reason  for  mak- 
ing the  organization  of  the  school  township, 
and  its  right  to  carry  on  the  school  system, 
depend  upon  the  determination  of  a  matter, 
the  prior  settlement  of  which  was  not  essen- 
tial to  the  corporate  existence  of  the  school 
township  and  the  administration  of  the 
school  law.  Settlement  must  inevitably  come. 
Sliould  those  charged  with  the  duty  of  mak- 
ing it  fail  to  obey  the  law,  mandamus  would 
set  them  in  motion.  The  nature  of  their  de- 
cision could  not  be  dictated  by  any  court; 
but  they  could  be  compelled  to  make  some 
decision.  The  discharge  of  this  duty,  wheth- 
er voluntary  or  under  compulsion,  can  as 
well  go  on  after  as  before  the  school  town- 
ship becomes  liable  for  the  district  debts  and 
is  authorized  to  carry  on  the  schools.  The 
township  is  by  the  statute  made  liable  for 
these  uouds.  It  is  the  formal  party  against 
which  judgment  may  be  recovered.  When 
execution  in  the  form  of  mandamus  to  com- 
pel a  levy  of  taxes  is  applied  for,  the  court 
will  observe  the  decision  of  the  board  of  ad- 


CORPORATE  EXISTENCE  XOT  OPEN  TO  COLLATERAL  ATTACK. 


17 


justment  in  the  apportionment  of  the  bur- 
den. If  no  settlement  has  at  that  time  been 
vohmtarily  reached,  the  court  in  a  separate 
proceeding  will  compel  the  performance  of 
this  duty  specially  enjoined  by  law,  and 
when  such  adjustment  is  consummated  the 
writ  of  mandanms  to  compel  the  levy  of  a 
tax  to  pay  the  judgment  must  observe  and 
follow  this  adjustment  in  the  apportioning  of 
the  tax  among  the  several  old  districts  of  the 
new  township.  The  statute  is  not  clear.  The 
question  is  by  no  means  free  from  doubts. 
If  the  eye  is  riveted  on  section  13G  alone 
there  is  much  force  in  the  defendant's  posi- 
tion. But  we  must  scan  the  w^hole  act  to 
find  out  its  spirit,  and  in  the  light  of  that 
spirit  we  must  interpret  section  136.  We  can 
discover  a  good  reason  for  keeping  these  dis- 
tricts alive,  after  the  organization  of  the 
school  township,  for  the  special  purpose  of 
adjustment  of  equities.  We  believe  it  Avould 
be  highly  inconvenient  to  preserve  their  ex- 
istence thereafter  for  general  school  pur- 
poses, and  that  such  was  not  the  intention  of 
the  lawmaking  power.  The  existence  of 
these  districts  for  this  particular  purpose  is 
not  incompatible  with  the  existence  of  the 
school  township.  It  in  no  manner  interferes 
with  the  full  exercise  by  the  school  township 
of  ail  its  powers.  These  districts  were  to  be 
kept  alive  for  a  short  period,  to  accomplish 
a  special  object  entirely  foreign  to  the  power 
conferred  upon  school  townships.  Their  ut- 
ter extinction  for  all  purposes  contemporane- 
ously with  tlie  creation  of  school  townships 
would  have  left  the  latter  no  more  complete- 
ABB.CORP.— 2 


ly  in  possession  of  all  their  functions  as  mu- 
nicipal corporations.  Finding  no  error,  the 
judgment  is  atfirmed.    All  concur. 

On  Rehearing. 

(May  31,  1893.) 
We  are  asked  to  grant  a  rehearing  on  the 
assumption  that  we  have  overlooked  the  case 
of  Dartmouth  Sav.  Bank  v.  School  Dists. 
Nos.  G  and  31.  6  Dak.  332,  43  N.  W.  Rep.  822. 
We  had  not  overlooked  it.  We  do  not  regard 
it  as  in  point.  In  that  case  it  might  be  said 
that  there  was  no  color  of  organization. 
There  was  no  petition  ever  tiled,  or  even 
signed.  In  so  far  as  that  decision  can  be  re- 
garded as  conflicting  with  our  conclusions  we 
feel  constrained  to  differ  from  the  court 
which  pronounced  it. 

Another  matter  is  referred  to  in  the  peti- 
tion for  rehearing  which  strikes  us  with 
much  force.  It  is  insisted  that,  unless  w» 
modify  the  judgment,  it  will  stand  as  an  u.- 
qualified  judgment  against  the  defendant,  to 
be  collected  the  same  as  any  other  judgment 
against  it.  To  save  any  question,  we  wiU 
modify  the  judgment  so  that  the  collection 
of  it  must  be  enforced  according  to  the  pro- 
visions of  sections  130-141,  c.  44,  Laws  18S3. 
The  district  court  will  modify  the  judgment 
by  inserting  therein  the  following  clause: 
This  judgment  is  to  be  enforced  subject  to 
the  provisions  of  sections  136-141,  c.  44, 
Laws  1883;  the  debt  on  which  it  is  rendered 
being  a  debt  subject  to  equalization  as  there- 
in provided.  Modified  and  atfirmed.  All  con- 
cur. 


18        CORPORATE  EXISTENCE  NOT  OPEN  TO  COLLATERAL  ATTACK. 


STATE  ex  rel.  RESSEL  t.  WHITNEY  et  al. 

(59  N.  W.  884,  41  Neb.  613.) 

Supreme  Court  of  Nebraska.    June  27,  1894. 

Application  for  mandamus  by  the  state  on 
the  relation  of  T.  J.  Ressel  against  S.  A. 
Whitney  and  others.     Granted. 

W.  S.  Morlan  and  Gomer  Thomas,  for  re- 
lator. R.  L.  Keester,  J.  G.  Thompson,  and 
John  Everson,  for  respondents. 

POST,  J.i  *  *  *  *  •  * 
The  reliance  of  the  respondents  is  appar- 
ently upon  the  proposition  that,  on  the  com- 
pletion of  the  census  mentioned,  the  said 
corporation  ceased  to  be  a  city  of  the  second 
class,  and  became  eo  instanti  a  village,  and 
that  there  exists  no  authority  for  the  division 

1  Part  of  opinion  is  omitted. 


of  villages  into  wards,  and  that  the  election 
of  councilmen  by  wards  is  without  authority 
and  void.  To  that  proposition  we  cannot 
give  assent.  The  rule  is  well  settled  upon' 
authority  that  the  existence  of  a  municipal 
coi^poration  cannot  be  questioned  in  collat- 
eral proceeding.  In  Dillon  on  Municipal  Cor- 
porations (4th  Ed.  43a)  it  is  said:  "Where  a 
municipal  corporation  is  acting  under  color 
of  law,  and  its  existence  is  not  questioned  by 
the  state,  it  cannot  be  collaterally  drawn  in 
question  by  private  parties;  and  the  rule  is 
not  different  although  the  constitution  may 
prescribe  the  manner  of  incorporation."  The 
conduct  of  the  respondents  appears  to  have 
been  contumacious  in  the  extreme,  and  is  in- 
excusable in  any  view  of  the  case.  The  writ 
is  allowed  as  prayed,  and  the  costs,  including 
$60  to  the  referee,  will  be  taxed  to  the  re- 
spondents Zerbe,  Whitney,  Sullivan,  and 
Turkington.     Writ  allowed. 


POWER  OF  LEGISLATURE  TO  COMPEL  PAYMENT  OF  DEBTS. 


19 


MATOR,   ETC.,  OF  CITY  OF  GUTHRIE   v. 
TERRITORY  ex  rel.  LOSEY. 

(31  Pac.  190,  1  Okl,  188.) 

Supreme  Court  of  Oklahoma.     Sept.    19,  1892. 

Appeal  from  district  coux't,  Logan  county; 
E.  B.  Green,  Judge. 

Mandamus  by  the  teiTitory  of  Oklahoma 
on  the  relation  of  Marquis  D.  Losey  against 
the  mayor  and  common  council  of  the  city 
of  Guthrie,  to  compel  defendants  to  issue  a 
warrant  for  the  payment  of  relator's  claim 
for  money  due  him  from  defendants  in  x-eturn 
for  duties  performed  as  referee  under  direc- 
tion of  the  court  in  fixing  the  amount  of  cer- 
tain claims  against  the  city.  Defendants 
made  return  to  relator's  alternative  writ  of 
mandamus  by  way  of  demurrer,  which  was 
overruled,  and  defendants  answered.  Re- 
lator's demurrer  to  the  answer  was  sustain- 
ed, judgment  rendered  for  relator,  and  a  per- 
emptory writ  issued,  commanding  defendants 
to  issue  tlie  warrant.  From  this  judgment, 
defendants  appeal.    Affirmed. 

Bierer  &  Cotteral,  for  appellants.  H.  S. 
Cunningham,  H.  E.  Asp,  and  Saml.  S.  Over- 
street,  for  appellee. 

BURFORD,  J.  On  the  22d  day  of  April, 
3889,  at  the  opening  of  the  Oklahoma  coun- 
try to  settlement  and  occupancy,  a  large  num- 
ber of  people  settled  for  town-site  purposes 
upon  the  lands  now  occupied  by  the  city  of 
Guthrie.  The  act  of  congress  approved 
March  2,  1889,  contains  a  provision  that  no 
entry  of  lands  for  town-site  purposes  shall  em- 
brace more  than  320  acres  in  any  one  entry. 
To  avoid  this  inhibition,  and  segregate  more 
lands  for  the  purpose  of  trade  and  business, 
four  separate  entries  were  made  of  these 
lands,  consisting  of  320  acres  each,  and  were 
severally  denominated  Guthrie,  East  Guth- 
rie, Capitol  Hill,  and  West  Guthrie.  The 
town-site  settlers  and  occupants  of  each  of 
these  subdivisions  organized  what  were  call- 
ed "provisional  governments,"  under  char- 
ters adopted  by  the  people  at  public  meetings 
held  for  such  puipose,  and  each  selected 
municipal  officers,  made  public  improve- 
ments, graded  streets,  erected  buildings,  con- 
structed bridges,  adopted  laws  and  ordinan- 
ces, and  arrested,  punished,  and  imprisoned 
violators  of  such  ordinances.  These  pro- 
visional governments  assumed  and  exercised 
all  the  powers,  functions,  and  authority  of  le- 
gally-constituted municipal  corporations,  and 
continued  to  exercise  the  same  until  the  month 
of  August,  A.  D.  1890,  when  they  were  con- 
solidated, and  organized  as  a  village  corpora- 
tion, under  and  piu-suant  to  the  laws  of  Ne- 
braska, as  adopted  and  extended  over  said 
territory  by  the  act  of  congress  approved 
May  2,  1890,  providing  a  teiTitorial  govern- 
ment for  the  territory  of  Oklahoma;  and  said 
village  of  Guthrie  succeeded  to  all  the  im- 
provements, property,  books,  and  documents 
of  the  several  provisional  governments.  Dur- 
ing the  existence  of  the  several  provisional 


governments  they  each  contracted  and  cre- 
ated in  various  ways  pertaining  to  their  mu- 
nicipal affairs  certain  debts,  which  remained 
unpaid  at  the  time  the  said  provisional  gov- 
ernments were  converted  into  a  legally-consti- 
tuted municipal  corporation.  The  village  of 
Guthrie  continued  her  corporate  existence 
until  after  the  adjournment  of  the  first  terri- 
torial legislature,  when  she  organized  as  a 
city  of  the  first  class,  under  the  laws  of  Okla- 
homa, and  has  ever  since  remained  such,  with 
a  mayor,  common  council,  and  police  officers, 
exercising  all  the  functions  and  powers  of  a 
municipal  corporation,  and  is  composed  of  the 
same  people,  and  embraces  the  same  terri- 
tory, as  the  original  provisional  governments 
of  Guthrie,  East  Guthrie,  Capitol  Hill,  and 
West  Guthrie,  and  has  succeeded  to  all  their 
property  and  improvements,  and  has  adopted 
and  appropriated  the  same.  During  the  ses- 
sion of  the  first  legislature,  and  after  the 
village  of  Guthrie  had  been  organized,  an  act 
was  passed,  entitled  "An  act  for  the  purpose 
of  providing  for  the  allowance  and  payment  of 
the  indebtedness  heretofore  created  by  the 
people  and  cities  of  Guthrie,  East  Guthrie, 
West  Guthrie,  and  Capitol  Hill,  now  consoli- 
dated into  the  city  of  Guthrie."  Chapter  14, 
art.  1,  St.  Okla.  This  act  empowers  the  dis- 
trict judge  of  Logan  county  to  appoint  three  dis- 
interested persons  to  act  as  referees  to  inquire 
into  and  pa.ss  upon  all  claims  and  demands 
of  every  character  heretofore  issued  by  the 
four  provisonal  governments  for  all  purposes. 
"The  holders  of  claims  are  requested  to  pre- 
sent them  to  the  referees,  supported  by  affi- 
davit that  the  claims  are  bona  fide,  and  were 
for  money  advanced,  materials  furnished,  or 
labor  performed  for  the  benefit  of  the  city 
requiring  the  same;  and  the  referees  are  au- 
thorized to  hear  evidence,  if  they  deem  nec- 
essary. The  referees  are  required  to  give 
notice  of  the  time  for  presentation  of  claims, 
and  after  thirty  days  all  demands  not  pre- 
sented are  barred."  Section  4  of  said  act 
pi'ovides  "that,  after  the  commission  or  ref- 
erees shall  have  passed  upon  and  allowed 
any  and  all  claims  mentioned  in  this  act,  they 
shall  make  a  report  to  the  district  court  of 
same,  showing  the  names  and  amounts  al- 
lowed by  them,  and  also  all  claims  and  the 
names  and  amounts  disallowed  by  them,  for 
approval  or  disapproval  of  the  district  judge. 
And  all  claims  allowed  and  approved  by  the 
district  judge  shall  be  certified  to  the  mayor 
and  council  of  the  village  of  Guthrie,  who  are 
hereby  authorized  and  directed  to  issue  war- 
rants upon  the  village,  and  payable  by  the 
village  to  the  holders  and  owners,  payable  in 
installments,  each  of  the  amounts  to  be  in 
one,  two.  three,  four,  and  five  years,  to  bear 
interest  at  the  i*ate  of  six  per  cent,  per  annum 
from  the  date  of  the  allowance  by  the  com- 
mission or  referees;  aud  said  mayor  and  coun- 
cil of  the  village  of  Guthrie  shall  levy  a  tax 
upon  the  property  of  the  residents  of  said  vil- 
lage to  pay  the  warrants  herein  referred  to, 
levying  same  upon  each  subdivision  hereto- 


20 


POWER  OF  LEGISLATURE  TO  COMPEL  PAYMENT  OF  DEBTS. 


fore  constituting  Guthrie.  East  Guthrie,  West 
Guthrie,  and  Capitol  Hill  according  to  the 
amount  of  indebtedness  created  by  the  city 
councils,  the  mayors,  and  school  boards,  here- 
tofore acting  for  and  in  behalf  of  the  people 
resident  of  said  cities;  each  of  said  cities  to 
be  liable  for  and  taxable  under  this  act  for 
the  amount  of  indebtedness  created  by  them." 
Section  5  is  as  follows:  ••That  said  commis- 
sion or  referees  shall  be  allowed  such  com- 
pensation as  the  district  judge  may  allow 
them  for  the  services  to  be  performed  by 
them  under  this  act,  and  the  village  of  Guth- 
rie shall  pay  the  same  to  the  said  commission 
or  referees,  upon  the  order  of  the  district 
judge." 

Acting  under  the  provisions  of  this  statute, 
the  district  judge  of  Logan  county  appointed 
the  relator,  with  two  others,  referees  or  com- 
missioners, and  they  qualified  and  performed 
the  duties  required  of  them  in  said  act,  and 
made  their  report  to  the  district  court. 
Thereupon  the  court  ordered  that  the  relator 
be  allowed  the  sum  of  $425  for  his  services 
as  such  referee,  and  ordered  that  the  council 
issue  warran^^s  of  the  city  of  Guthrie  there- 
for. This  order  was  presented  to  the  council 
in  session,  and  a  demand  made  for  the  war- 
rant, which  was  refused.  The  relator  applied 
to  the  district  court  of  Logan  county  for  an 
alternative  writ  of  mandate,  commanding  the 
city  to  issue  said  warrant,  or  show  cause  why 
the  same  should  not  be  done.  The  city  coun- 
cil made  their  retiu-n  to  this  writ  by  way  of 
demurrer,  and  assigned  as  cause  for  demurrer 
'•that  the  court  had  no  jurisdiction  to  grant 
the  relief  prayed  for;"  that  the  act  upon 
which  the  claims  were  based  was  unconstitu- 
tional, and  in  conflict  with  the  organic  act  of 
Oklahoma;  that  the  petition  does  not  state 
facts  to  entitle  the  relator  to  the  relief  pray- 
ed for.  This  demurrer  was  overruled  and  ex- 
ception saved.  The  city  then  answered  in 
11  paragraphs,  the  first  of  which  was  a  gen- 
eral denial  of  the  allegations  contained  in 
the  petition.  The  relator  demurred  to  the 
several  answers,  and  the  demurrer  was  sus- 
tained as  to  all  of  the  answers  except  the  first, 
to  which  it  was  overruled.  This  paragraph 
was  afterwards  stridden  out,  for  the  reason 
that  the  defendant  refused  to  verify  the  same. 
The  court  then  rendered  judgment  for  the  re- 
lator, and  issued  a  peremptory  writ  of  man- 
damus commanding  the  defendant  to  issue 
said  warrant.  From  this  judgment  the  city 
appeals,  and  assigns  as  error  the  overruling 
of  her  demurrer  to  the  petition,  and  tlie  sus- 
taining of  the  relator's  demurrer  to  her  sev- 
eral answers. 

Some  of  the  questions  presented  by  this 
record  are  quite  novel  and  difficult,  and  of  no 
little  importance.  The  subjects  have  all  been 
treated  ably  and  exhaustively  by  counsel  on 
both  sides,  the  several  briefs  exhiliiting  evi- 
dences of  great  research  and  careful  study. 
The  first  question  to  be  determined  in  this 
controversy  is  as  to  the  legal  status  or  charac- 
ter   of    the    so-called    "provisional    govern- 


ments." It  is  a  well-established  rule  of  law 
that  before  there  can  be  a  de  facto  municipal 
corporation  there  must  be  some  authority 
for  a  de  jure  corporation.  A  de  facto  corpora- 
tion cannot  exist  where  there  is  no  law  au- 
thorizing a  de  jure  corporation.  Norton  v, 
Shelby  Co.,  118  U.  S.  426,  6  Sup.  Ct.  1121; 
Evenson  v.  Ellingson,  67  Wis.  634,  31  N.  W, 
342.  "The  proposition  which  lies  at  the 
foundation  of  the  law  of  coi-porations  of  this 
country  is  that  here  all  corporations,  public 
and  private,  exist,  and  can  only  exist,  by  vir- 
tue of  express  legislative  enactment,  creating" 
or  authorizing  the  creation  or  existence  of  the 
corporate  body.  Legislative  sanction  is,  with 
us,  absolutely  essential  to  lawful  corporate 
existence."  Dill.  Mun.  Corp.  §  37.  Was  there 
any  legislative  sanction  to  the  existence  of 
mvmicipal  corporations  prior  to  the  act  of  con- 
gress approved  May  2,  189(1?  We  are  unable 
to  find  any  such  authority.  These  provision- 
al governments  gi*ew  out  of  a  necessity  made 
by  the  absence  of  legal  authority.  They 
were  aggi'egations  of  people  associated  togeth- 
er for  purpose  of  mutual  benefit  and  protec- 
tion. Without  any  statute  law,  they  became 
a  law  unto  themselves,  and  adopted  the  forms 
of  law  and  government  common  among  civ- 
ilized people,  and  enforced  their  authority  hy 
the  power  of  public  sentiment.  They  had 
no  legal  existence;  they  were  nonentities; 
they  could  not  bind  themselves  by  contracts, 
or  bind  any  one  else;  they  were  morally  bound 
to  make  just  recompense  for  that  which  they 
received  in  money,  labor,  or  materials,  but 
no  such  obligations  could  be  enforced  against 
them.  The  organic  act  furnished  them  a  sov- 
ereign civil  government,  and  supplied  the  au- 
thority for  constituting  de  jure  municipal  cor- 
porations. Then  they  became  and  were  de 
facto  corporations  until  such  time  as  they 
complied  with  the  laws  relating  to  incorpo- 
rating villages,  and  became  a  de  jure  corpo- 
ration. 

The  de  jure  corporation  having  succeeded  ta  \ 
all  the  property,  public  improvements,  people, 
and  territory  of  the  provisional  governments,  ' 
has  the  legislature  power  to  compel  the  de 
jure  government  to  pay  the  debts  of  its  illegal 
unauthorized  predecessor?   It  is  a  fundament-  .■ 
a]  rule  that  a  legislature  may,  by  a  retroact-  ; 
ive  statute,  cure  or  ratify  any  defect  which 
it  might  have,  in  the  first   instance,  author- 
ized, unless  prohibited  by  some  constitutional   / 
or  organic  provision;    or  it  may,  by  a  I'etro-  ; 
active  statute,  legalize  any  proceedings  that 
it    might     have    authorized.     Wade,     Retro. 
Laws,  §§  254,  257,  and  authorities  cite<l.     It 
can  hardly  be  contended  that  the  legislatiue 
could  not  have  authorized  the  creation  of  the 
debts  of  the  provisional  govei-nments  liad  there 
been  a  legislature  prior  to  their  organization; 
that  is,  it  is  not  shown  that  the  debts  con- 
tracted, or  any  of  them,  are  of  a  class  that 
a  de  jure   municipal   corporation    might   not 
have  been  authorized  to  contract.     Ratifica- 
tion is  merel.v  the  act  of  conferring  authority 
retrospectively;    and  this  power  must  neces- 


POWER  OF  legislatuhe  to  compel  payment  of  debts. 


21 


f.arily  be  moasured  bj-  the  constitutional  pro- 
visions in  force  at  the  date  of  the  ciu-ative  act, 
-where  it  is  not  denied  by  the  constitution  in 
force  at  the  date  of  the  orij,nnal  defective 
■organization  or  act  Id.  §  2m.  Retrospec- 
tive hiws  may  be  enacted  for  tlie  purpose  of 
furnishing  remedies  for  the  enforcement  of 
pre-existent  moral  obligations  which  were  not 
legally  enforceable.  Commissioners  v.  Bun- 
ker, IG  Kan.  498;  Weister  v.  Hade.  .52  Pa.  St. 
474;  Wade,  Retro.  Laws,  §§  21-23.  Munici- 
pal corporations  are  but  subdivisions  of  the 
state  or  territory  created  for  the  convenience 
and  better  government  of  its  affairs  by  local 
officers.  Their  rights,  powers,  and  duties  are 
the  creatures  of  legislative  enactment,  and 
they  exist  and  act  in  subordination  to  the 
sovereign  power  that  creates  them.  The  leg- 
islature may  determine  what  moneys  they 
uiaj'  raise  and  expend,  and  what  taxation 
may  be  imposed,  and  it  may  compel  a  munici- 
pal corporation  to  pay  a  debt  which  has  any 
moral  or  meritorious  basis  to  rest  on.  May- 
or, etc.,  V.  Tenth  Nat.  Bank,  111  N.  Y.  446,  IS 
N.  E.  618.  In  the  case  of  New  Orleans  v. 
Clark,  95  U.  S.  644.  the  court,  in  sijealiing 
of  the  power  of  legislative  control  over  mu- 
nicipal corporations,  says:  "The  power  of 
taxation  which  the  legislature  of  a  state  pos- 
sesses may  be  exercised  to  any  extent  upon 
property  within  its  jurisdiction,  except  as  spe- 
cially restrained  by  its  own  or  the  federal  con- 
stitution; and  its  power  of  appropriation  of 
the  moneys  raised  is  equally  unlimited.  It 
may  appropriate  them  for  any  puipose  which 
it  maj'  regard  as  calculated  to  promote  the 
public  good.  Of  the  expediency  of  the  tax- 
ation, or  the  wisdom  of  the  appropriation,  it 
is  the  sole  judge.  The  power  which  it  may 
•exercise  over  the  revenues  of  the  state  it 
may  also  exercise  over  the  revenues  of  the 
■city  for  any  purpose  connected  with  its  pres- 
ent or  past  condition,  except  as  such  reve- 
nues may,  by  the  law  creating  them,  be  de- 
voted to  special  uses,  and  in  imposing  a  tax 
it  may  prescribe  the  nuuiiciiial  pxu'pose  to 
Tvhich  the  moneys  raised  sliall  be  applied. 
A  city  is  only  a  political  subdivision  of  the 
state,  made  for  convenient  administration  of 
tlie  government.  It  is  an  instrumentality 
with  powers  more  or  less  enlarged,  accoi'ding 
to  the  requirements  of  the  public,  and  which 
may  be  increased  or  repealed  at  the  will  of 
tlie  legislature.  In  directing,  therefore,  a  par- 
ticular tax  by  such  corporation,  and  the  ap- 
proiiriation  of  the  proceeds  to  some  special 
municipal  purpose,  the  legislature  only  exer- 
<?i.ses  a  power  tnrougli  its  subordinate  agent 
which  it  could  exercise  directly;  and  it  does 
this  only  in  another  way  when  it  directs 
such  corporation  to  assume  and  pay  a  partic- 
ular claim  not  legally  binding  for  want  of 
some  formality  in  its  creation.  Init  for  which 
the  corporation  has  received  an  equivalent." 
The  doctrine  liere  enunciated  has  been  ap- 
proved by  the  courts  of  last  resort  in  nearly 
all  the  states,  and  authorities  ai'e  numerous 
sustaining    this    proposition.     See   People    v. 


Burr,  13  Cal.  .343;  Ouilford  v.  Supervisors,  13 
N.  Y.  143.  Judge  Dillon,  in  his  work  on  Mu- 
nicipal Corpoi-ations,  (section  75,)  thus  states 
his  conclusions:  "The  cases  on  this  subject, 
when  carefully  examinetl,  seem  to  the  author 
to  go  no  further,  probably,  than  to  assert  the 
doctrine  that  it  is  competent  for  the  legisla- 
ture to  compel  mimicipal  corporations  to  rec- 
ognize and  pay  debts  or  claims  uot  binding  in 
strict  law,  and  wliich,  for  technical  reasons, 
could  not  be  enforced  in  equity,  but  which, 
nevertheless,  are  just  and  equitable  in  their 
character,  and  involve  a  moral  obligation." 
In  Guilford  v.  Supervisors,  13  N.  Y.  143,  the 
court  states  the  rule  thus:  "The  legislature  is 
not  confined  in  its  appropriations  of  public 
moneys  or  of  the  sums  to  be  raised  by  taxa- 
tion in  favor  of  individuals  to  cases  in  which 
a  legal  demand  exists  against  the  states.  It 
can  thus  recognize  claims  founded  in  equity 
and  justice  in  the  largest  sense  of  these  terms, 
or  in  gratitude  or  charity.  Independently  of 
express  constitutional  i-estrictions,  it  can 
make  appropriations  of  money  whenever  the 
public  well-being  requires,  or  will  be  pro- 
moted by  it;  and  it  is  the  judge  of  what  is  for 
the  public  good."  See,  also,  Thomas  v.  Le- 
land,  24  Wend.  65;  Brewster  v.  Syracuse,  19 
N.  Y,  116.  The  legislature  may  compel  a  city 
to  contribute  for  the  erection  of  a  bridge  in 
another  city,  and  appoint  commissioners  to  de- 
termine the  amount  to  be  contributed.  Car- 
ter V.  Bridge.  104  Mass.  236.  It  was  held  in 
Brewster  v.  City  of  New  York,  19  N.  Y.  116, 
that  the  legislature  has  power  to  authorize 
taxation  for  the  payment  of  a  claim  not  a  le- 
gal ol)ligation.  and  witliout  the  consent  of 
the  citizens  of  the  municipality.  "The  ix)w- 
er  of  the  legislature  to  require  the  payment  of 
a  claim  for  which  an  equivalent  has  been  re- 
ceived, and  from  the  payment  of  which  the 
city  can  only  escape  on  a  technical  ground, 
would  seem  clear."  New  Orleans  v.  Clark, 
95  U.  S.  644. 

While  the  contracts  and  agreements  entered 
into  by  the  provisional  governments  cannot  be 
enforced  as  contracts,  either  against  the  con- 
tracting parties  or  their  successors,  it  does  not 
necessarily  follow  that  all  the  debts  sought  to 
be  collected  under  this  act  are  without  remedy, 
and  miglit  not  be  enforced  in  some  manner 
against  the  present  city  of  Guthrie.  If  they 
can,  then  it  presents  a  stronger  reason  for  leg- 
islative action.  In  Nelson  v.  Mayor,  etc..  (53  N. 
Y.  544,  the  court  said:  "It  has  often  been  ad- 
judged that  if  a  city  obtains  money  on  a  void 
bond,  or  for  an  illegal  tax,  or  by  mistake,  and 
the  money  goes  into  tlie  city  treasury,  the  city 
can  be  compelled  to  refund.  If  it  obtains  prop- 
erty under  a  void  contract,  and  actually  uses 
the  property,  and  collects  the  value  of  it  from 
property  owners  by  means  of  assessments,  the 
plainc>st  principles  of  justice  require  tliat  it 
should  make  compensation  for  the  value  of 
such  property  to  tlie  person  from  whom  it  was 
obtained.  The  city,  in  such  case,  however, 
sliould  be  held  liable  only  for  the  actual  value 
of  the  property,  or  what  it  obtained  therefor. 


22 


POWER  OF  LEGISLATURE  TO  COMPEL  PAYMENT  OF  DEBTS. 


and  would  not  be  concluded  by  the  contract 
price."  This  proposition  is  supported  by  the 
following  cases:  Herman  v.  City  of  Crete,  9 
Neb.  35G,  2  N.  W.  722;  Maher  v.  City  of  Chi- 
cago, 38  111.  2GG;  Louisiana  v.  Wood,  102  U.  S. 
294:  Chapman  v.  County  of  Douglass,  107  U. 
S.  348,  2  Sup.  Ct.  02;  Clark  v.  Saline  Co.,  9 
Neb.  51G,  4  N.  W.  246.  There  is  no  provision 
in  the  federal  constitution  or  tJie  organic  act  of 
this  territory  that  contravenes  the  statute  au- 
thorizing the  village  of  Guthrie  to  pay  these 
debts;  and.  aside  from  any  question  of  implied 
liability  for  money  had  and  received,  or  prop- 
erty appropriated  and  converted  to  the  use  of 
the  city,  it  seems  clear  that  the  legislature  did 
not  exceed  its  authority  in  enacting  said  law. 
Courts  cannot  overthrow  legislative  acts  upon 
the  ground  that  they  are  vicious  in  their  pol- 
icy, or  evil  in  their  tendencies.  Statutes  must 
stand,  unless  found  repugnant  to  some  express 
provision  of  the  organic  law  or  constitution. 
Mount  v.  State,  90  Ind.  29;  County  of  Living- 
ston V.  Darlington.  101  U.  S.  407.  The  legisla- 
ture is  to  be  the  judge  of  the  policy  or  wisdom 
of  the  laws  they  enact,  and,  so  long  as  they 
keep  within  the  constitutional  restriction,  the 
courts  cannot  interfere,  however  unjust  they 
may  seem  in  their  operations.  Counsel  for  the 
present  city  of  Guthrie  cites  the  case  of  State 
V.  Tappan,  29  Wis.  (jC>4.  and  insist  that  in  that 
case  the  court  lays  down  a  rule  contrary  to  the 
docti'ine  enunciated  in  the  cases  we  have  here- 
in cited.  A  careful  examination  of  that  case 
fails  to  reveal  any  serious  conflict.  The  deci- 
sion is  based  upon  local  constitutional  resti'ic- 
tions.  and  the  general  conclusion  of  the  court  is 
In  harmony  with  the  adjudicated  cases.  In 
summing  up  his  conclusion  the  learned  judge 
states  this  proposition:  "The  legislature  may 
authorize  a  town  to  levy  taxes  therein  for  pub- 
lic purposes  not  strictly  of  a  municipal  charac- 
ter, but  from  which  the  public  have  received, 
or  will  receive,  some  direct  advantage,  or 
whore  the  tax  is  to  be  expended  in  defraying 
the  expenses  of  the  government,  or  in  promot- 
ing the  peace,  good  order,  and  welfare  of  so- 
ciety, or  where  it  is  to  be  expended  to  pay 
claims  founded  in  natural  justice  and  equity, 
or  in  gratitude  for  public  services  or  ex- 
penditures, or  to  discharge  the  obligations  of 
charity  and  humanity,  from  which  no  person 
or  cori)oration  is  exempt."  Under  this  rule  the 
legislatiue  might  reasonably  say  to  the  village 
of  Guthrie:  "You  have  received  some  advan- 
tage from  the  work  performed  and  improve- 
ments made  by  these  provisional  governments, 
and  these  claims  are  founded  in  natural  jus- 
tice, and  we  will  authorize  you  to  tax  your 
property  to  pay  tliem."  The  legislature  has 
seen  fit  to  provide  for  the  payment  of  these 
claims.  It  had  tlie  power  to  enact  such  a  law. 
We  find  the  statute  in  conflict  with  no  superior 
rule  or  limitation  wliich  affects  its  vitality. 

It  is  contended  tliat  the  law  is  special  legis- 
lation, and  hence  in  conflict  with  chapter  818, 
p.  170,  24  Stat.,  which  prohibits  the  legisla- 
tures of  territories  from  passing  any  local  or 
special  laws  incorporating  or   amending   the 


charter  of  any  city  or  town  or  village,  or 
granting  to  any  city  or  town  any  special  or  ex- 
clusive privilege,  immunity,  or  franchise.  This 
act  does  not  change  or  amend  the  charter,  nor 
does  it  grant  any  special  privilege  or  immunity 
to  the  village  of  Guthrie.  It  simply  recog- 
nizes a  moral  obligation  on  her  part  to  pay  cer- 
tain debts  created  by  her  predecessors,  from 
which  she  received  some  advantage  or  benefit, 
and  for  which  she  was  not  legally  liable,  and 
provided  a  speedy  and  inexpensive  method  of 
determining  the  amounts  and  authorized  the 
levy  of  taxes  for  raising  the  revenues  to  meet 
and  pay  the  same.  In  construing  a  provision 
of  the  constitution  prohibiting  special  laws,  the 
supreme  court  of  Indiana  in  Mount  v.  State, 
90  Ind.  29,  says:  "The  granting  of  relief  to- 
individual  claimants  is  not  within  the  provi- 
sion of  the  constitution  which  prohibits  the  en- 
actment of  special  laws.  Each  claim  stands 
on  its  own  merits.  A  general  law  could  not 
be  made  applicable;  and,  when  general  laws 
are  not  applicable,  special  ones  may  be  enact- 
ed. It  is  only  when  general  laws  are  apphc- 
able  that  special  laws  are  forbidden."  There 
is  nothing  in  the  act  in  question  that  conflict& 
with  the  provisions  of  the  act  of  congress  re- 
ferred to.  Nor  does  the  legislature  attempt  to- 
confer  judicial  authority  upon  the  commission- 
ers. They  can  render  no  judgment.  But  they 
make  a  finding,  which  is  reported  to  the  dis- 
trict court,  and  this  finding  and  report  is  sub- 
ject to  revision  by  the  court,  and  is  .subject  ta 
the  ordinary  rules  of  practice  in  reference  to 
reports  of  referees.  The  district  court  renders 
the  judgment  and  makes  the  order  which  binds 
the  city  authorities.  Chapter  818,  §  4,  p.  171, 
24  Stat.,  provides  that  no  municipal  corpora- 
tion shall  become  indebted  in  any  manner  ex- 
ceeding 4  per  centum  on  the  value  of  the  tax- 
able property  within  such  corporation,  as 
shown  by  the  last  assessment  for  territorial 
and  county  purposes.  The  tenth  paragraph  of 
appellants'  answer  to  the  alternative  writ  at- 
tempts to  bring  the  present  city  within  this  in- 
hibition, by  alleging  that  the  claims  allowed 
against  some  of  the  original  subdivisions  are  in 
excess  of  the  4  per  cent,  limit.  The  answer 
di.scloses  the  fact  that  the  assessed  value  of 
taxable  property  in  the  provisional  govern- 
ments prior  to  the  organization  of  the  city  was 
at  least  $592,407,  and  the  total  claims  allowed 
amount  to  $17,779.14,  which  is  less  than  4  per 
cent,  of  the  assessed  valuation.  And.  even  if 
it  should  appear  that  the  claims  are  in  excess 
of  the  limit,  it  .would  not  invalidate  the  stat- 
ute. This  congressional  provision  is  a  limit  oq 
the  municipal  authorities,  but  does  not  limit 
the  power  of  the  legislature  to  levy  assess- 
ments on  the  property  within  the  corporation 
by  proper  legislation.  The  debts  and  the  tax 
authorized  to  be  levied  to  pay  them  owe  their 
authority  to  this  act,  (article  1,  c.  14,  Laws 
Okla.;)  and  the  date  of  taking  effect  of  this 
act  must  be  taken  as  the  time  when  the  debt 
was  incurred.  There  was  no  liability  on  the 
village  of  Guthrie  until  the  legislature  created 
the  liability,  and  the  debts  were  incurred  as  of 


POWER  or  LEGISLATURE  TO  COMPEL  PAYMENT  OF  DEBTS. 


23 


that  date.,  There  is  no  showing  that  the  as- 
sessed valuation  of  the  property  liable  for  said 
taxes  was  of  less  value  at  that  date  than  when 
the  provisional  governments  were  in  control, 
or  that  any  assessment  had  ever  been  made 
for  territorial  and  county  purposes.  There  was 
no  error  in  sustaining  the  demurrer  to  this 
paragraph  of  answer. 

Having  readied  the  conclusion  that  the  vil- 
lage of  Guthrie  was  legally  liable  by  legisla- 
tive enactment  for  the  proper  provisional 
debts,  is  the  city  of  Guthrie  also  liable,  and  can 
the  defendant  in  the  case  at  bar  be  required  to 
pay  the  relator  for  his  services?  This  question 
has  been  passed  upon  by  several  courts  of  the 
highest  resort,  and  the  same  conclusion  is 
reached  in  all.  The  city  of  Guthrie  succeed- 
ed to  all  the  rights,  franchises,  and  property 
of  the  village  of  Guthrie,  and  is  bound  by  all 
her  contracts  and  obligations.  The  legislature 
made  the  village  of  Guthi-ie  liable  for  these 
debts  and  claims.  It  constituted  a  part  of  her 
legal  liabilities  at  the  time  the  change  was 
made  from  the  village  to  the  city  organization. 
The  new  was  bound  to  carry  out  and  recog- 
nize all  the  legal  conti'acts  and  liabilities  of  the 
old.  A  municipal  corporation  cannot  escape 
the  payment  of  just  liabilities  by  a  change  of 
name,  a  change  of  organization,  or  a  change  of 
boundaries.  The  remedy  may  be  for  a  time 
suspended  or  defeated,  but  the  obligation  rests 
the  same,  and  the  legal  successor  which  talies 
the  people,  the  territory,  the  property,  and  cor- 
porate benefits  will  be  bound  to  meet  the  lia- 
bilities. Broughton  v.  Pensacola,  93  U.  S. 
266;  Mobile  v.  Watson,  116  U.  S.  280,  6  Sup. 
Ct.  398;  Girard  v.  Philadelphia,  7  Wall.  1; 
Mount  Pleasant  v.  Becliwith,  100  U.  S.  514; 
O'Connor  v.  Memphis,  0  Lea,  730. 

It  is  contended  that  mandamus  is  not  the 
proper  remedy  of  the  relator  in  this  case,  and 


that  he  has  a  remedy  at  law.  It  is  suflBlcient 
to  say  that,  in  view  of  our  conclusion  that  the 
legislature  had  the  power  to  r^Hiuire  these 
debts  to  be  paid,  it  also  had  the  power  to  deter- 
mine the  manner  of  their  payment,  and  who 
should  audit  and  determine  the  amounts.  The 
legislature  also  provided  who  should  deter- 
mine the  compensation  of  the  referees,  and 
how  the  same  should  be  paid.  If  the  city  of 
Guthi-ie  desired  to  question  the  amount  of  com- 
pensation, they  should  have  appeared  before 
the  district  judge  at  the  proper  time,  and  made 
their  objections  then,  and  had  their  day  in 
court.  The  law  says  the  judge  shall  fix  the 
compensation,  and  order  the  warrant  drawn. 
This  has  been  done.  The  city  has  made  no 
objection  before  the  proper  tiibunal  at  the 
right  time,  and  she  cannot  now  be  heard  to 
question  the  correctness  of  the  amount  or  the 
value  of  the  services  rendered.  All  the  of- 
ficers of  the  city  of  Guthrie  get  their  powers 
and  authority  from  the  legislature,  and  they 
are  bound  by  the  legislative  acts,  and  at  all 
times  subject  to  legislative  control.  If  the 
legislature  has  seen  fit  to  talie  this  question 
out  of  their  hands,  and  intrust  it  to  some  oth- 
er person  designated  by  them,  the  courts  have 
no  right  to  set  aside  their  actions  or  ques- 
tion the  motive  so  long  as  no  organic  law  is 
violated.  There  is  no  discretion  in  the  city 
officers  in  reference  to  compensation  of  Lo- 
sey.  The  only  act  they  can  perform  is  to  draw 
the  warrant.  It  is  as  much  the  proper  charge 
against  the  general  city  revenue  as  the  salary 
of  any  other  officer.  It  is  their  duty  to  draw 
the  warrant  as  directed  by  the  district  judge, 
and  mandamus  is  a  proper  proceeding  to  com- 
pel them,  if  they  refuse.  W^e  find  no  error  in 
the  record.  The  judgment  of  the  district  court 
of  Logan  county  is  affirmed,  at  the  costs  of 
the  appellants. 


24      PUBLIC  POWERS  AND  EIGHTS  HELD  AT  AYILL  OF  LEGISLATUKE. 


nrXCE  et  al.  T.  CROCKER  et  al. 

(44  N.  E.  446,  16G  Mass.  347.) 

Supreme  Judicial    Court  of   Massachusetts. 
Sufifolk.     June  15,  ISlXi. 

fioport  from  supreme  judicial  court,  Suf- 
folk county;   James  M.  Morton,  Jud^e. 

Kill  by  one  Prince  and  others  against  one 
Crocker  and  others  to  restrain  defendants 
from  proceeding  to  construct  a  subway  under 
the  streets  of  Boston.  A  demurrer  to  the 
bill  was  sustained,  and  the  case  reported. 
Dismi-ssed. 

F.  A.  Brooks  and  John  D.  Bryant,  for  com- 
plainants. Solomon  Lincoln,  for  the  Boston 
Transit  Commission. 


ALLEN,  J,  The  general  complaint  of  the 
plaintiffs,  as  stated  in  their  bill,  is  that,  if 
the  transit  commissioners  are  permitted  to 
proceed  in  the  execution  of  the  enterprise 
committed  to  them  by  St.  1S94,  c.  548,  they 
•will  involve  the  city  of  Boston  in  an  in- 
debtedness or  liability  of  many  millions  of 
dollars  beyond  the  limit  of  indebtedness  pre- 
scribed by  the  laws  of  the  commonwealth, 
and  will  do  this  without  the  authority  of  the 
city  council  or  the  consent  of  the  taxpaying 
citizens;  and  also  that  this  statute  would 
have  the  effect  to  deprive  the  city  of  many 
rights  and  privileges  belonging  to  its  in- 
habitants, and  especially  that  it  would  in- 
fringe rights  which  relate  to  the  control  of 
the  streets  and  highways  of  the  city  by  the 
aldermen  and  street  commissioners;  all  in 
violation  of  the  right  of  the  inhabitants  of 
the  city  to  govern  themselves. 

It  is  provided  by  section  40  of  the  statute 
that  the  transit  commission  shall  not  "take 
any  land  or  commence  the  construction  of  any 
Bubway  or  tunnel  until  this  act  shall  be  ac- 
cepted by  a  majority  of  the  voters  of  said 
city  voting  at  some  special  election  called  by 
the  mayor,"  etc.  In  the  printed  copy  of  the 
Bubway  legislation  furnished  to  us  by  mu- 
tual consent  of  counsel  it  is  stated  that  this 
act  was  accepted  at  a  spec-ial  election  held 
July  24,  1894.  There  is  no  averment  in  the 
bill  tliat  no  such  vote  of  acceptance  had  beeu 
passed,  and,  though  the  briefs  on  both  sides 
say  little  or  nothing  on  this  point,  yet  it  is 
implied  in  the  briefs  furnislied  by  one  of 
the  counsel  for  the  plaintiffs  (Mr.  Bryant)  that 
there  had  been  such  an  acceptance,  and  it  is 
then  contended  that  the  people  at  the  polls 
are  not  the  tribunal  to  determine  what  debts 
shall  be  incurred  by  or  in  behalf  of  the  city, 
because,  by  a  law  which  stands  unrepealed, 
that  question  is  to  be  determined  by  both 
branches  of  the  city  government,  and  a  two- 
thirds  vote  of  each  branch  is  required  to  au- 
thorize the  incurring  of  a  debt  by  the  city. 
As  the  fact  of  the  acceptance  of  the  statute 
has  significance  in  certain  aspects  of  the 
questions  presented,  we  will  state  at  the  out- 
set that,  in  the  al)sence  of  any  averment  to 
the  contrary,  we  assume  that  such  a  vote  of 
acceptance  was  duly  passed.    This  is  a  fact 


of  which  the  court  should  take  ju(ilicial  no- 
tice. Andrews  v.  Knox  Co.,  70  111.  65;  State 
V.  Swift,  (39  Ind.  505;  Ranch  v.  Com.,  78  Fa. 
St.  490.  Moreover,  it  is  very  doubtful,  to  say 
the  least,  whether  the  plaintiffs,  as  taxpaying 
inhabitants,  have  any  standing  to  maintain 
the  bill  in  their  own  names,  except  upon  the 
assumption  that  the  vote  to  accept  the  stat- 
ute is  virtually  a  vote  to  raise  or  to  pay  mon- 
ey, within  the  meaning  of  Fub.  St.  c.  27,  § 
129.  In  this  commonwealth,  contrary  to  what 
has  been  held  in  some  other  jurisdictions,  a 
suit  like  the  present  has  been  considered  not 
to  fall  within  the  general  jurisdiction  of  a 
court  of  equity.  Baldwin  v.  Wilbruham,  140 
Mass.  4.-J9,  4  N.  E.  829;  Steele  v.  Signal  Co.. 
100  Mass.  36,  35  N.  E.  105;  Carlton  v.  City 
of  Salem,  103  Mass.  141.  By  Pub.  St,  c.  27. 
§  129,  when  a  town  votes  to  raise  by  taxa- 
tion or  pledge  of  its  credit,  or  to  pay  from  its 
treasury,  any  money  for  a  purpose  other 
than  those  for  which  it  has  the  legal  right 
and  power,  it  may  be  restrained  by  this 
court  upon  the  suit  or  petition  of  not  less 
than  10  taxable  inhabitants.  The  case  of 
Frost  V.  Belmont,  6  Allen,  152,  was  brought 
under  St.  1847,  c.  37,  which  was  like  Pub.  St. 
c.  27,  §  129.  The  case  of  Lowell  v.  City  of 
Boston,  111  Mass.  454,  was  also  brought  un- 
der the  similar  provision  found  in  Gen.  St.  c. 
18,  §  79.  No  point  was  there  made  that  un- 
der the  statute  the  petitioners  had  no  right 
to  be  heard. 

It  is  contended,  however,  by  the  present  de- 
fendants that  the  plaintiffs  have  no  standing 
to  maintain  this  bill,  but  in  favor  of  affording 
a  remedy  against  a  use  of  public  money 
which  is  supposed  to  be  illegal  we  think  a 
somewhat  liberal  construction  should  be  giv- 
en, and  that  the  vote  to  accept  the  statute 
is  sufficient  to  give  the  plaintiffs  a  standing 
in  court  under  Pub.  St.  c.  27,  §  129. 

The  two  principal  grounds  upon  which  the 
plaintiffs  contend  tliat  St.  1894,  c.  548,  as  a 
whole,  is  invalid,  are  that  it  imposes  a  heavy 
debt  upon  the  city,  and  to  a  certain  extent 
takes  away  from  the  city  the  control  of  its 
streets.  The  plaintiffs  deny  the  power  of  the 
legislature  to  do  either  of  these  things  with- 
out the  author;  y  of  the  city  council,  or  the 
consent  of  the  taxpaying  citizens  of  the  city. 
It  has,  however,  been  established  by  a  great 
weight  of  usage  and  authority  that  the  legis- 
lature may  impose  such  a  duty  and  burden 
upon  towns  and  cities  without  their  own  con- 
sent. We  do  not  deem  it  necessary  to  go  in- 
to an  extended  discussion  of  this  subject,  or 
to  consider  what  objects  may  be  so  special  or 
local  in  their  character  as  not  to  come  within 
the  general  rule.  As  to  roads  of  all  kinds 
and  bridges  and  sewers  the  doctrine  is  well 
established  in  this  commonwealth  and  else- 
where that  the  legislature  may  prescribe 
what  shall  be  done,  and  require  cities  and 
towns  to  bear  the  expense  to  such  an  extent 
and  in  such  proportions  as  it  may  determine. 
The  powei-s  which  had  been  given  to  cities 
and  towns  by  the  legislature  by  special  or  by 


PUBLIC  POWERS  AND  RIGHTS  HELD  AT  WILL  OF  LEGISLATURE.      25 


I  general  laws  are  in  no  sense  a  contract,  and 
do  not  become  vested  rights  as  against  the 
legislature.  Coolidge  v.  Brookline,  114  Mass. 
592,  50G,  597;  Inhabitants  of  Agawam  v. 
Hampden  Co.,  130  Mass.  528,  530;  In  re  King- 
man, 153  Mass.  .5GG,  573,  57(>,  27  X.  E.  778;  Peo- 
ple V.  Morris,  13  Wend.  325;  Sloan  v.  State.  8 
Blackf.  3(51;  Teople  v.  Flagg,  4G  N.  Y.  401; 
City  of  IMiiladelphia  v.  Field,  58  Ta.  St.  320; 
Pumphroy  v.  Mayor,  etc.,  of  Baltimore,  47 
Md.  145;  Dill.  Mun.  Corp.  (4th  Ed.)  §§  54,  73, 
74,  831,  and  otlior  cases  there  cited.  If  this 
power  were  otherwise  doubtful,  in  the  pres- 
ent case  the  statute  under  consideration  is 
not  peremptory  and  absolute,  but  it  remained 
inoperative  imtil  accepted  by  a  majority  of 
the  voters  of  the  city.  The  plaintiffs  contend 
that  the  statute  is  to  become  operative  with- 
out the  authority  of  the  city  council  or  the 
consent  of  the  taxpayiug  citizens;  but,  if  a 
consent  were  neccssaiy,  we  know  of  no  au- 
thority or  legal  reason  for  requiring  any  oth- 
er consent  than  that  of 'qualitied  voters.  In 
Merrick  v.  Amherst,  12  Allen,  500,  506,  the 
court,  while  intimating  that  no  consent  at  all 
was  necessary,  said:  "To  guard  against  all 
danger  of  mistake,  and  to  obtain  the  highest 
evidence  from  those  most  interested  that  the 
imposition  of  the  tax  was  not  unequal  or  dis- 
proportionate to  the  expected  benefits,  the 
legislature  required  that  it  should  be  laid  on 
the  inhabitants  of  the  town  unless  two-thirds 
of  the  voters  at  a  meeting  to  be  called  for  the 
purpose  should  assent  to  its  imposition." 
The  instances  where  legislatures  have  provid- 
ed that  towns  or  cities  or  counties  might  or 
should  bear  the  whole  or  a  portion  of  the 
expense  of  local  improvements  in  case  the 
<iualified  voters  should  assent,  and  not  other- 
wise, are  numberless.  In  our  own  statutes, 
from  early  times,  such  legislation  has  been 
common.  In  the  Public  Statutes  now  in 
force  many  instances  are  found  enacting  that 
cities  and  towns  may  by  vote  accept  the  pro- 
visions of  certain  statutes,  and  thereupon 
shall  be  subject  to  certain  duties  and  bur- 
dens. There  have  been  many  special  laws 
to  the  same  effect,  ll  cannot  be  necessary 
to  cite  more  than  a  fcAv  illustrative  mstanoes: 
Pub.  St.  c.  27,  §§  10-13,  27,  29,  44,  Go,  09.  74; 
Id.  c.  28,  §§  3,  22,  23;  Id.  c.  35,  §  4;  Id.  c. 
45,  §§  44,  52;  Id.  c.  50,  §§  20,  22,  25;  Id.  c. 
51,  §  10;  Id.  c.  80,  §§  &-13.  By  the  second 
amendment  to  the  constitution,  city  govern- 
ments cannot  be  established  except  Avith  tlie 
consent  and  on  the  application  of  a  majority 
of  the  inhabitants  of  the  town  present  and 
voting  thereon  at  a  meeting.  All  of  the  cit- 
ies of  the  commonwealth  have  been  incorpo- 
rated under  this  amendment.  Larcom  v. 
Olin,  lUO  Mass.  102,  104,  108,  35  N.  E.  113. 
When  the  legislature  imposes  such  a  condi- 
tion in  order  to  bind  a  city  or  town  or  coun- 
ty to  assume  a  particular  burden,  it  must  be 
complied  with;  but  an  assent  by  vote  will 
give  full  effect  to  the  statute,  and  the  city, 
town,     or    county     will    thereupon    become 


bound.  Hampshire  v.  Franklin,  IG  Mass.  7G, 
87,  90;  Stone  v.  Charlestown,  114  Mass.  214; 
Central  Bridge  Corp.  v.  City  of  Lowell,  15 
Gray,  lOG,  IIG;  St.  Joseph  Tp.  v.  Rogers,  IG 
Wall.  G4rl,  GG2,  G(;3;  Board  v.  Aspiuwall,  21 
How.  539;  Dill.  Mun.  Corp.  §§  519,  52G,  544, 
551-553,  and  cases  there  cited.  It  is  not  ma- 
terial that  the  work  is  not  put  in  charge  of 
the  street  commissioners  of  the  city.  The 
legislature  might  provide  for  doing  the  work 
at  the  expense  of  the  city,  but  through  other 
agents  than  those  regularly  appointed  by  the 
city;  it  might  impose  liability  on  the  city, 
incur  the  expense,  and  require  payment  l)y 
the  city.  The  acceptance  of  the  act  by  the 
city  precludes  objection  on  this  score,  even 
if  such  objection  would  otherwise  have  been 
open. 

The  foregoing  considerations  apply  to  the 
bridge  over  Charles  river,  provided  for  in  sec- 
tion 30,  as  well  as  to  the  subway  itself. 

It  is  further  contended  that  taxation  can 
only  be  for  a  public  use;  that  the  term  "pub- 
lic use,"  in  reference  to  taxation,  has  a  more 
restricted  meaning  than  when  applied  to  the 
taking  of  land  by  eminent  domain;  that  the 
subway  will  not  be  a  highway,  or  open  and 
free  to  be  used  by  the  public  for  driving  or 
walking;  that,  when  finished,  the  statute  au- 
thorizes the  transit  commission  virtually  lo 
grant  a  lease  of  it  to  any  street-railway  com- 
pany for  50  years;  and  that  the  use  of  the 
subway  which  is  contemplated  is  not  a  pub- 
lic use.  That  the  legislature  can  authorize 
a  city  or  town  to  tax  its  inhabitants  only  for 
public  purposes  is  well  settled  and  familiar. 
Opinion  of  Justices,  155  Mass.  598.  (>01.  30  X. 
E.  1142,  and  cases  there  cited.  But  railroads 
are  always  held  to  be  built  for  public  use, 
whether  the  right  to  take  land  or  the  right 
to  grant  pecuniary  aid  to  them  is  considered. 
The  legislature  of  this  commonwealth  has 
granted  aid  to  railroad  corporations  from  its 
own  treasury.  See  in.stances  cited  in  King- 
man, Petitioner,  l.")3  Mass.  570,  27  X.  E.  778. 
It  has  also  in  a  number  of  instances  author- 
ized cities  and  towns  to  furnish  such  aid  by 
subscribing  to  stock  or  otherwise.  For  illus- 
trations, see  St.  1852,  c.  15G;  St.  1855,  cc.  394, 
395;  St.  18G0,  cc.  34,  184;  St.  18G1,  c.  98;  St. 
1802,  cc.  50.  78;  St.  18G3,  cc.  96.  104,  105;  St. 
18G4,  cc.  11,  242,  245,  24G,  249,  200.  Finally 
such  municipal  aid  was  authorized  b.v  general 
laws.  St.  1870,  c.  325,  §  3;  St.  1874,  c.  372, 
§  35;  Pub.  St.  c.  112,  §  4G.  The  constitution- 
ality of  such  legislation  has  not  been  brought 
into  direct  controversy  before  this  court,  but 
indirectly  it  has  been  recognized.  Kittrodge 
V.  Inliabitants  of  Xorth  Brookfield,  138  Mass. 
28G;  Com.  v.  Inhabitants  of  Williamstown, 
1.5G  Mass.  70,  30  X.  E.  472.  And  elsewhere 
it  has  been  established  by  such  a  weiglit  of 
judicial  authority  that  we  regard  it  as  set- 
tled. Ok-ott  V.  Supervisors,  IG  Wall.  G78, 
G94-G9G;  Railroad  Co.  v.  Otoe  Co.,  Id.  GG7; 
Pine  Grove  Tp.  v.  Talcott,  19  Wall.  GOG;  Dill. 
Mun.  Corp.  (4th  Ed.)  §§  153-158,  508.  The 
building   of    the   subway   for   the    carriage   ol 


26      PUBLIC  POWERS  AXD  EIGHTS  HELD  AT  WILL  OF  LEGISLATURE. 


such  passengers  as  pay  the  regular  fare  is 
therefore  for  a  public  use,  and  it  is  within  the 
constitutional  power  of  the  legislature  to  or- 
der or  sanction  taxation  for  it. 

The  plaintiffs  also  contend  that  the  statute 
is  in  violation  of  the  fourteenth  amendment 
to  the  constitution  of  the  United  States.  This 
objection  is  not  dwelt  upon  in  argument,  and 
it  is  enough  to  say  that  we  think  it  is  un- 
founded. 

The  plaintiffs  further  contend  that  the  stat- 
ute is  unconstitutional,  because  it  omits  to 
provide  for  compensation  for  property'  taken 
or  injured,  and  especially  for  taking  part  of 
the  Common  and  Public  Garden.  But  the 
plaintiffs  cannot  be  heard  to  object  to  the 
constitutionality  of  the  statute  on  grounds 
which  only  affect  others  than  themselves. 
Hingham  &  Quincy  Bridge  &  Turnpike  Corp. 
Y.  Norfolk  Co.,  6  Allen,  353;  Davis  v.  Coimty 
Com'rs,  153  Mass.  218,  22S,  26  N.  E.  848.  So 
far  as  other  private  owners  are  concerned,  the 
plaintiffs  do  not  represent  them,  and  have  no 
standing  to  be  heard  in  their  behalf. 

In  respect  to  the  matter  of  providing  com- 
pensation, the  stress  of  the  argument  of  the 
plaintiffs  rests  on  the  contention  that  there  is 
no  provision  for  compen.sation  for  so  much 
of  the  Common  and  Public  Garden  as  may  be 
taken.  It  is  urged  that  these  were  dedicated 
to  the  use  and  enjoyment  of  the  inhabitaats 
of  the  town  long  before  the  city  charter  was 
granted,  and  that  they  are  held  by  the  city 
in  trust  to  secure  and  promote  such  use;  that 
the  city,  as  trustee  for  these  purposes,  is  en- 
titled to  compensation  if  any  part  of  either 
is  taken;  and  that  the  fact  that  the  city  is 
the  party  to  pay,  as  well  as  to  receive,  does 
not  affect  this  argument,  because  the  city  acts 
in  two  different  capacities.  If  we  assume  that 
the  plaintiffs  are  entitled  to  be  heard  on  this 
■  branch  of  the  argument,'^it  is  well  settled  that 
'  land  already  appropriated  to  one  public  use 
may  be  taken  by  autliority  or  direction  of  the 
.  legislature  for  another  pul»lic  use.  Old  Colony 
R.  Co.  V.  Framingham  Water  Co.,  153  Mass. 
5(>1,  27  N.  E.  CG2.  We  do  not  need  to  go  into 
any  nice  consideration  of  the  precise  capacity, 
interest,  or  duty  of  the  city  on  caring  for  the 
Common  or  Public  Garden,  because  both  the 
legislature  and  the  city  have  consented  to  such 
new  use  of  both  as  may  be  included  within 
the  terms  of  the  statute.  If  the  right  to  their 
ase  is  in  the  inhabitants  of  the  city,  their  voib 
acce])ting  the  act  binds  them.  If  it  is  in  the 
public  at  large,  as  distinguished  from  the  in- 
habitants of  the  city,  the  interests  of  the  pub- 
lic are  under  the  protection  of  the  legislature. 
The  plaintiffs,  in  their  capacity  of  taxpaying 
citizens  of  Boston,  or  as  voters,  or  as  a  con- 
stituted part  of  the  public  at  large,  can  as- 
sert no  right  to  the  continued  use  of  the  Com- 


mon or  of  the  Public  Garden  as  public  parks, 
or  to  have  compensation  paid  for  the  sur- 
render of  such  use,  against  the  combined  ac- 
tion of  the  legislature  in  passing  the  statute 
and  of  the  inhabitants  of  the  city  in  accepting 
it.  Commissioners  v.  Armstrong,  45  N.  Y.  234; 
Dill.  Mun.  Corp.  (4th  Ed.)  §§  598,  650-651a, 
notes,  and  cases  there  cited.  Under  these  cir- 
cumstances we  need  not  pursue  the  questions  re- 
lating to  the  title  to  and  interest  of  the  public  in 
public  parks. — questions  somewhat  discussed 
in  Abbott  v.  Cottage  City,  143  Mass.  521,  10 
N.  E.  325,  and  Attorney  General  v.  Abbott, 
154  Mass.  323.  28  N.  E.  34G. 

It  is  also  contended  by  the  plaintiffs  that 
if  St.  1894,  c.  548,  bears  such  a  constructio'i 
as  to  allow  the  transit  commission  to  enter 
the  Public  Garden  with  the  subway,  the  stat- 
ute is  unconstitutional,  because  it  impairs  the 
obligation  of  a  contract  between  the  common 
wealth  and  the  city.  This  supposed  contraci 
is  found  in  St.  1859,  c.  210,  §  3,  which  pro- 
vided that  the  commissioners  on  the  Back 
Bay  should  fill  up  and  complete  at  the  ex- 
pense of  the  commonwealth  so  much  of  Ar- 
lington street  as  remained  to  be  completed, 
and  the  strip  of  land  easterly  of  said  street 
which  had  theretofore  been  released  by  the 
commonwealth  to  the  city;  and,  further,  that 
"no  building  shall  hereafter  be  erected  be- 
tween Arlington  and  Charles  streets,  except 
such  as  are  expedient  for  horticultural  pur- 
poses." It  is  argued  that  this  is  a  contract 
that  the  commonwealth  would  not  erect  a 
building  there,  and  that  the  subway  as  con- 
structed is  a  building,  and,  if  it  is  authorized 
by  St.  1894,  c.  548,  then  that  the  statute  is  a 
violation  of  said  contract.  The  short  answer  to 
this  argument  is  that  the  inhabitants  of  the 
city  have  accepted  St.  1894,  c.  548,  and  so 
have  consented  to  whatever  is  containe^l  there- 
in. Contracts  may  be  waived  by  the  parties 
to  them.  If  this  was  a  contract,  the  city  was 
a  party  to  it,  and  might  waive  it. 

The  plaintiffs  also  contend  that  the  statute 
is  invalid  because  work  to  be  done  under 
it  will  increase  the  debt  of  the  city  much  be- 
yond the  limit  of  municipal  indebtedness  fixed 
by  St.  1885,  c.  178,  §  2.  But  the  same  au- 
thority which  fixed  that  limit  may  change  it, 
and  section  17,  which  requires  the  treasurer 
of  the  city  to  issue  bonds,  also  provides  that 
this  debt  shall  not  be  included  in  determin- 
ing the  limit  of  indebtedness.  Similar  excep- 
tions have  been  very  numerous  in  the  legis- 
lation of  the  last  10  years.  See  Blue  Book 
for  1895,  p.  805.  There  is  no  averment  in  the 
bill  that  the  limit  of  indebtedness  as  thus  ex- 
tended wiU  be  exceeded  by  the  issue  of  the 
bonds  provided  for  by  St.  18i>4,  c.  548.  i 

1  Part  of  the  opinion  is  omitted. 


CREDITORS'  RIGHTS  CANNOT  BE  IMPAIRED. 


27 


UPPER  DARBY  TP.  v.     BOROUGH  OF 
LANSDOWNE  et  al. 

(34  Atl.  574,  174  Pa.  St.  203.) 

Supreme  Court  of  Pennsylvania.     March  2, 
189G. 

Appeal  from  court  of  common  pleas,  Dela- 
ware county. 

Bill  in  equity  by  Upper  Darby  township 
agaiiust  the  borough  of  Lansdowne  to  appor- 
tion indebtedness  of  the  township;  the  Prov- 
ident Life  &  Trust  Company  and  others, 
holding  bonds  of  the  township,  being  made 
defendants.  P"'rom  the  decree  apportioning 
the  debt  as  between  the  township  and  bor- 
ough, but  holding  that  it  could  not  be  ap- 
portioned so  as  to  bind  the  creditors,  said  bor- 
ough api>eals.    Affirmed. 

Act  June  12,  1878  (P.  L.  184),  entitled  "An 
act  providing  for  the  adjustment  of  all  in- 
debtedness between  a  township  and  one  or 
more  lK>roughs  erected  therefrom,  also  for 
the  adjustment  of  the  indebtedness  of  a 
township  changed  or  merged  into  one  or 
more  boroughs,"  by  section  3  provides: 
"Whenever  any  borough  has  been  or  may 
hereafter  be  erected,  as  aforesaid,  or  when- 
ever any  township  has  been  or  may  here- 
after be  entirely  merged  into  more  than  one 
borough,  as  aforesaid,  the  court  of  common 
pleas  of  the  proper  county,  sitting  in  equity, 
shall  have  power,  upon  the  application  of 
any  one  or  more  creditors  of  said  township 
or  townships,  or  upon  the  application  of  the 
proper  authorities  of  any  said  township  or 
townships,  borough  or  boroughs  or  either  of 
them,  by  a  suit  or  suits  in  equity,  to  ascer- 
tain the  indebtedness  of  said  township  or 
townships,  including  judgments  against  the 
same,  at  the  time  of  incorporation  of  eacn 
of  said  boroughs  respectively,  and  to  equita- 
bly adjust  and  apportion  said  indebtedness 
between  said  township  or  townships  and 
borough  or  boroughs,  and  between  the  sev- 
eral boroughs  into  which  any  township  shall 
have  become  merged  as  aforesaid,  and  shall 
thereupon  decree  the  proportion  of  said  in- 


debtedness which  each  township  and  bor- 
ough shall  pay;  in  making  said  adjustment, 
as  applied  to  each  of  said  boroughs,  refer- 
ence shall  be  had  to  the  time  of  incorpora- 
tion of  such  borough,  and  to  the  debts  then 
existing,  whether  since  paid  or  not,  and  also 
to  the  several  amounts  of  township  taxes 
then  unexpended;  and  the  said  adjustment 
shall  be  based  upon  the  assessment  of  said 
township  or  townships  for  the  year  in  which 
such  borough  was  incorporated,"  etc. 

Lewis  Lawrence  Smith,  for  appellant  Ed- 
ward A.  Price  and  Jos.  B.  Townsend,  for  ap- 
pellees. 

PER  CURIAM.    The  decree  appealed  from 
in  this  case  is  well  made,  and  conforms  to 
the  spirit  and  letter  of  the  act  of  the  12th 
day  of  June,  1878.     The  powers  of  the  court 
are  limited  to  an  adjustment  of  the  common 
indebtedness  between  the  township  and  bor- 
ough,   so   that    each   may   levy   and    collect, 
through  its  own  machinery,  the  amount  de- 
termined by  the  court  to  be  its  proper  share.  I 
The  act  gives  to   the  court  no  power  over 
the  creditor.     Each  body  remains  liable  to 
him  for  the  whole  of  the  indebtedness,  but,  , 
as    between   themselves,   the  amount   to  be  i 
paid  by  the  township    and  borough,  resx)ect- 
ively,  is  fixed;    so  that,  if  either  pays  or  is  j 
compelled  to  pay  more  than  its  share,  it  will  I 
be  subrogated  to  the  rights  of  the  creditor  ' 
as  to  that  amount,  and  be  entitled  to  collect  I 
it  from  the  defaulting  body.     If  the  whole  I 
debt  should  be  charged  up  to  each  as  a  lia- 
bility, a  credit  should  be  given  to  each  for  so 
much  as  the  decree  fixes  as  the  share  of  the 
other.      In    effect,    as   between    themselves, 
and  for  the  purpose  of  striking  a  balance  for 
the  purpose   of  ascertaining  the   borrowing 
power  of  each,   the   borough  and   township 
will  thus  be  charged  only  with  the  amount 
charged   against  it   in   the   decree,    but   the 
rights    of   the    creditors    remain    as    before. 
The  decree  is  affirmed,  the  costs  of  the  ap- 
peal to  be  paid  by  the  appellant. 


28 


DESCRIPTIOX  OF  CORPOliATE  BOUXDARIES. 


TOWN  OF   ENTERPRISE   et  al.   v.   STATE 
ex  rel.  ATTORNEY  GENERAL. 

(10  South.  740,  29  Fla.   128.) 

Supreme  Court  of  Florida.     March  16,  1892. 

Error  to  circuit  court,  Volusia  county;  J. 
D.  Broome,  Judge. 

Quo  warranto  proceedings  on  tlie  rel.-itinu 
of  the  attorney  general  against  T.  B.  Bid- 
■dulph,  S.  S.  Bennett,  Andrew  Harold,  .S.  A. 
Donald,  George  H.  Count,  and  William  James 
to  test  their  right  to  be  a  corporation  under 
the  name  of  the  "Town  of  Enterprise."  From 
B.  judgment  of  ouster  respondents  bring  er- 
ror.    Reversed. 

John  W.  Price,  for  plaintiffs  in  error. 

MABRY,  J.i  *  *  *  * 

A  second  corporation,  it  is  alleged,  was 
formed  on  March  24.  A.  D.  1SS4.  A  fair  and 
complete  transcript  of  the  proceedings  was 
prepared  by  the  clerk  of  said  town,  embody- 
ing the  notice  by  which  the  meeting  was  con- 
vened to  form  said  corporation,  the  number 
of  qualified  electors  present,  the  seal,  terri- 
torial limits  of  said  town,  and  the  names  of 
the  officers  elect,  to  which  the  mayor  and 
aldermen  attached  their  signatures,  attested 
by  the  clerk  with  .said  seal,  and  filed  with 
the  clerk  of  the  circuit  court,  and  marked 
^Tiled,"  but  before  being  recorded  was  lost, 
iind  cannot  now  be  found.  The  transcript  of 
the  proceedings  alleged  to  have  been  deliv- 
ered for  record  complies  with  the  statute  in 
every  respect,  except  it  does  not  embody  the 
name  or  style  of  the  corporation.  This  trans- 
cript, it  seems,  in  some  way  disappeared  from 
the  clerk's  office,  and  was  never  I'ecorded. 
We  would  not  be  disposed  to  pronounce  the 
corporate  organization  void  because  of  the 
failure  to  record  the  transcript,  under  the 
circumstances  alleged.  If  the  municipal  or- 
ganization was  properly  had,  and  a  perfect 
transcript  of  the  proceedings  delivered  to  the 
proper  officer,  whose  duty  it  was  to  record  it, 
we  think  the  incorporators  would  then  have 
complied  with  the  re(iuirement  of  the  statute, 
in  so  far  as  the  creation  of  the  corporation 
iimong  themselves  is  concerned.  They  had 
the  right  to  re-establish  the  lost  transcript, 
and  have  it  recorded.  It  is  not  necessary  for 
us  to  say  here  what  would  be  the  effect  of  a 
failure  on  their  part  to  establish  the  lost 
record  in  a  direct  proceeding  by  the  state  to 
vacate  the  municipal  government  thus  form- 
ed. There  is,  however,  a  defect  in  this  sec- 
ond alleged  incorporation  which  demands  our 
consideration.  The  alleged  metes  and  bounds 
of  this  incorporation  show  that  a  part  of  the 
territory  proposed  to  be  incorporated  is  de- 
tached and  disconnected  fromthe  other.  Sec- 
tions 1  and  2  of  township  19,  and  sections 
S5  and  30  in  township  18,  range  30,  constitute 
one  contiguous  body;  but  .section  G  in  town- 
ship 18,  range  31,  is  a  body  one  mile  square, 
xind  distant   five   miles.     We  have,   then,   a 

1  Part  of  the  opiuion  is  omitted. 


pi-oposed  municipal  organization,  under  our 
general  statute  for  the  incorporation  of  towns 
and  cities,  containing,  as  corporate  territory, 
two  separate  and  detached  localities.  The 
query  at  once  presents  itself,  can  this  be 
done?  The  statute  provides  that  "the  male 
inhabitants  of  any  hamlet,  village,  or  town  in 
this  state  not  less  than  twenty  in  number," 
with  the  requisite  quahfications,  may  estab- 
lish for  themselves  a  municipal  government. 
It  is  alleged  in  the  information  that  the  town 
of  Enterprise  was  incorporated.  In  Railway 
Co.  V.  Town  of  Oconto,  50  Wis.  189,  G  N.  W. 
607,  it  was  held  that  the  word  "town,"  as 
used  in  the  constitution  of  that  state,  denotes 
a  civil  division  composed  of  contiguous  ter- 
ritoiy,  and,  under  the  power  given  to  county 
boards  by  statute  to  set  off,  organize,  vacate, 
and  change  the  boundaries  of  towns  in  their 
respective  counties,  such  boards  cannot  make 
a  valid  order  changing  the  boundaries  of  a 
town,  so  that  it  shall  consist  of  two  separate 
and  distinct  tracts  of  land.  In  Smith  v.  Sher- 
ry, 50  Wis.  210,  G  N.  W.  561,  it  was  said: 
"The  idea  of  a  city  or  village  implies  an  as- 
semblage of  inhabitants  living  in  the  vicinity 
of  each  other,  and  not  separated  bj'  any 
other  intervening  civil  division  of  the  state." 
We  think  that  the  inhabitants  of  a  hamlet, 
village,  or  town  recognized  as  a  community 
of  persons  authorized  to  form  a  municipal 
government  under  the  general  act  for  the 
incorporation  of  cities  and  towns  in  force  in 
this  state  include  persons  living  on  contigu- 
ous territory,  and  that  an  attempt  to  incoiiJO- 
rate  two  distinct,  detached  tracts  of  land,  as 
corporate  territory  under  one  government,  is 
unauthorized  and  void.  1  Dill.  Mun.  Corp. 
§  27.  The  idea  of  a  municipal  government, 
with  outlying  detached  municipal  provinces, 
was  not  contemplated  by  the  statute.  The 
machineiT  of  government  provided  by  the 
statute  is  inapplicable  to  such  a  state  of  af- 
fairs. From  the  allegations  of  the  informa- 
tion our  conclusion  is  that  the  second  at- 
tempted incorporation  of  the  town  of  Enter- 
prise was  also  illegal. 

The  third  incorporation  in  question,  as  ap- 
pears from  the  allegations  of  the  information 
and  the  transcript  of  the  proceedings,  a  cer- 
tified copy  of  the  record  of  which  is  filed  as 
a  part  of  the  information,  was  in  compliance 
with  the  statute.  The  corporate  name  is 
"Enterprise,"  and  the  metes  and  bounds  of 
the  incorporation  are  defined,  and  all  the 
other  requisites  of  the  statute  substantially 
met.  It  appears  from  the  information  that 
officers  were  elected,  qualified,  and  dischar- 
ged official  duties  under  the  two  first  incor- 
porations, but,  before  the  formation  of  the 
third,  it  is  alleged  that  the  two  former  in  suc- 
cession were  laid  aside,  and  proceedings  were 
instituted  to  incorporate  again.  It  is  a  well- 
established  rule  that  no  collateral  attack  can 
be  made  upon  the  existence  of  a  corpora- 
tion. Such  bodies  derive  their  being  from 
the  sovereign  will  of  the  people,  and,  so  long 
as   the  state   does  not  question  their   exist- 


DESCRIPTIOX  OF  CORPORATE  BOUNDARIES. 


29 


ence,  it  cannot  be  controverted  in  a  collateral 
way  on  account  of  irregularities  and  defects 
in  their  organization.  President,  etc.,  v. 
Thompson,  20  111.  197;  Hamilton  v.  Presi- 
dent, etc.,  24  111.  22;    1  Dill.  Mun.  Corp.  §  43a. 

When  the  last  incoii)oration  was  formed 
there  was  no  municipal  government  in  ex- 
istence under  either  one  of  the  former  at- 
tempts at  incorporation.  Whatever  might 
be  the  effect  of  an  existing  municipal  gov- 
ernment under  a  void  incorporation,  as  to  the 
right  of  the  inhabitants  therein  to  organize  a 
new  government  in  opposition  to  it,  we  think 
that,  after  an  abandonment  of  such  organi- 
zation, the  former  proceedings  would  not  pre- 
clude them  from  proceeding  to  organize  a 
jnunicipal  government  in  accordance  with 
the  provisions  of  the  statute.  The  allegation 
in  the  information  that  officers  were  elected 
and  qualified  under  the  two  first  incorpora- 
tions, standing  alone,  would  be  no  objection 
against  the  third  incorporation,  as  it  is 
shown  that  the  organizations  under  the  for- 
mer were  void,  and  the  governments  under 
them  abandoned  before  any  proceedings  under 
the  latter.  The  theory  here  is  that  the  third 
incorporation  is  illegal,  and  the  proceedings 
instituted  are  to  test  the  right  of  plaintiffs  in 
error  and  others  to  maintain  a  corporate 
government.  Our  investigation  so  far  has 
conducted  us  to  the  conclusion  that,  as  shown 
by  the  information,  the  formation  of  the 
third  corporation  on  May  14,  A.  D.  lS8r>,  is 
legal;  and,  unless  there  is  something  in  the 
acts  of  the  legislature  in  reference  to  the 
two  first  that  will  change  the  result,  the  de- 
murrer was  improperly  overruled. 

The  legislature  passed  a  special  act  on  the 
22d  day  of  Februaiy,  A.  D.  1SS5,  about  one 
month  before  the  third  incorporation  was 
undertaken,  providing  "that  all  the  acts 
done  and  performed  in  the  organization  and 
incorporation  of  the  town  of  Euteii)rise,  in 
the  county  of  Volusia,  are  declared  to  be  le- 
gal and  valid  in  law  and  eiiuity,  and  to  be 
considered  valid  and  binding  by  the  laws 
of  the  state  of  Florida."  Chapter  3(>34,  Laws 
P'la.  lS8."i.  The  first  attempted  incorpora- 
tion, in  1S77,  was  void  for  uncertaintj-  in  the 
territorial  limits  and  metes  and  bounds  of 
the  incorporation.  The  second  one,  in  1884, 
was  void  because  an  attempt  was  made  to 
incorporate  into  one  municipal  govermnent 
two  distinct  and  detached  tracts  of  land, 
which  was  imauthorized  by  the  general  law 
f(jr  tlie  incorporation  of  cities  and  towns. 
The  enactment  of  this  statute  was  before 
the  adoption  of  the  constitution  of  lS8o. 
The  constitution  of  1808  (sections  21,  22,  art. 
4)  provides  that  the  legislature  shall  estab- 
lish a  uniform  system  of  county,  township, 
and  municipal  government,  and  shall  pro- 
vide, by  general  law,  for  incorporating  such 
municipal,  educational,  agricultural,  mechan- 
ical, mining,  and  other  useful  companies  or 
associations  as  may  be  deemed  necessarj-. 
Section  17  of  same  article  prohibits  special  or 
local  laws  in  certain  enumerated  cases,  which 


it  is  not  necessary  to  mention.  Under  the 
provisions  of  the  constitution  of  18(;S,  the 
legislature  could  not,  by  special  act,  create 
a  municipal  corporation,  as  the  clear  man- 
date of  that  instrument  was  that  provisioa 
should  be  made  by  general  law  for  incorpo- 
rating such  bodies.  The  attempted  incorpo- 
ration of  the  town  of  Enterprise  on  the  24th 
day  of  March,  A.  D.  1884.  to  which  the  spe- 
cial act  was  no  doubt  designed  to  apply,  was 
not  in  compliance  with  the  general  law  on 
that  subject,  m  this:  that  it  sought  to  in- 
corporate two  detached  territories  under  one 
government.  This  could  not  be  done  under 
the  general  law.  Was  it  competent  for  the 
legislature  to  validate  by  special  act  what 
had  been  attempted  to  be  done?  We  are 
duly  sensible  of  the  rule  that  an  act  of  the 
legislature,  passed  in  due  form,  is  not  to  be 
held  invalid  by  reason  of  its  being  supposed 
to  be  in  contravention  of  the  provisions  of 
the  constitution,  in  a  merely  doubtful  case, 
and  in  sucn  case  the  doubt  should  turn  the 
scale  in  favor  of  the  validity  of  the  enact- 
ment. We  recognize  the  well-settled  rule 
that  it  is  only  in  cases  where  the  act  of  the 
legislature  is  clearly  repugnant  to  the  con- 
stitution that  it  will  be  so  declared.  In 
Stange  v.  City  of  Dubuque,  62  Iowa,  303,  17 
N.  W.  518,  a  special  act  of  the  legislature,  at- 
tempting to  validate  a  void  ordinance  of  the 
city  of  Dubuque  granting  a  street-railway 
company  the  right  of  way  for  its  railroad  ou 
certain  streets  of  the  city,  was  prouounced 
void  under  a  constitution  prohibiting  the  leg- 
islature from  parsing  local  or  special  laws  for 
the  incorporation  of  cities  and  towns.  It 
was  said:  "As  the  legislature  could  not,  by 
special  act,  have  authorized  the  city  of  Du- 
buque to  pass  the  ordinance  in  question-,  it 
follows  that  it  cannot,  after  the  passage  of 
the  ordinance,  legalize  it  by  special  act.  The 
legislature  cannot  do  indirectly  what  it  is  in- 
hibited from  doing  directly."  The  follow- 
ing authorities  sustain  this  position:  Ex 
parte  Pritz,  9  Iowa,  30;  Davis  v.  Woohiough, 
Id.  104;  Town  of  McGregor  v.  Baylies,  19 
Iowa,  43;  Smith  v.  Sherry,  supra.  The 
twenty-first  section  of  article  4  of  the  con- 
stitution, which  provides  that  "the  legisla- 
ture shall  establish  a  uniform  system  of  mu- 
nicipal government,"  was  construed  in  the 
case  of  McConihe  v.  State,  17  Fla.  2.38.  It 
was  said:  "There  is  little  difficulty  in  deter- 
mining the  signification  of  the  word  'system.' 
in  this  connection.  Its  general  signification 
is  'plan,'  'arrangement,'  'method,'  and,  when 
used  in  reference  to  municipal  government, 
it  means.  sinq)ly,  rules  and  regulations  for 
the  organization  and  government  of  munici- 
pal corporations."  This  being  the  case,  it 
becomes  perfectly  clear  that  the  special  act 
in  question  is  in  conflict  with  the  constitu- 
tional requirement  of  uniformity  in  the  or- 
ganization of  municipal  governments,  what- 
ever might  be  its  effect  in  curing  mere  de- 
fects in  the  procedure  in  the  organization  of 
a    municipal   government   invested    with    no 


^0 


DESCRIPTION  OF  CORPORATE  BOUNDARIES. 


new  or  different  powers  than  those  organized 
under  the  general  law.  'Uniformity'  indi- 
cates 'consistency,'  'resemblance,'  'sameness,' 
a  'conformity'  to  one  pattern.  For  a  full  dis- 
cussion of  the  special  laws  prohibited,  and 
the  uniformity  of  the  operation  of  the  gen- 
eral legislation  under  the  sections  of  the  con- 
stitution in  question,  see,  in  addition  to  Mc- 
Conihe  v.  State,  supra.  State  v.  Stark,  18  Fla. 
255;  Lake  v.  State,  Id.  501;  Ex  parte  Wells, 
21  Fla.  280.  If  municipal  corporations  can 
be  formed  in  violation  of  the  general  incor- 
poration act  on  this  subject,  and  then  legal- 
ized by  special  act  of  the  legislature,  the 
uniformity  of  municipal  organization  de- 
manded by  the  constitution  can  be  dispensed 
with  by  special  legislation.  No  such  result 
as  this,  we  think,  can  be  reconciled  with  the 
constitution.  We  conclude  that  the  special 
act  of  1885  cannot  have  the  effect  to  make 
valid  what  has  been  done  in  the  attempted 
organizations  of  the  town  of  Enterprise.  The 
act  cannot  validate  what  was  done  under  ei- 
ther of  the  first  two  efforts  at  inconjoration. 
In  1887  we  find  a  general  act  (chapter  3748, 
Laws  Fla.)  providing  for  the  legalization  of 
the  charters  of  incorporated  cities  and  towns. 
This  act  went  into  effect  after  the  third  in- 
corporation was  had.  A  perusal  of  this  act 
will  show  that  it  has  no  application  to  the 
two  first  attempted  incorporations.  There 
was  no  municipal  government  in  existence  or 
operation  under  either  at  the  time  the  last 
act  took  effect.  It  applies  to  cities  and  towns 
which  then,  and  for  10  years  then  last  past 


had,  exercised  municipal  government,  and 
which,  on  account  of  certain  specified  defects 
in  organization,  had  the  legality  of  their  in- 
corporation brought  in  question.  The  first 
two  incorporations  had  been  abandoned,  and 
there  were  no  municipal  governments  under 
them,  and  hence  this  legislation  had  no  ap- 
plication to  them.  The  information  shows 
that  the  incorporation  of  May  14,  A.  D.  1885, 
was  in  compliance  with  the  statute,  and,  this 
being  so,  we  think  the  demurrer  was  improp- 
erly overruled. 

After  the  demurrer  was  overruled,  plain- 
tiffs in  error  filed  an  answer,  and,  on  motion 
of  the  state,  a  judgment  vacating  all  former 
incorporations  of  the  town  of  Enterprise,  or 
Enterprise,  was  rendered,  as  well  as  a  judg- 
ment of  ouster  against  plaintiffs  in  error. 
The  motion  seems  to  have  been  considered 
as  a  demurrer  to  the  answer.  Great  par- 
ticularity is  required  in  an  answer  in  such 
proceedings,  and  a  complete  legal  right  must 
be  shown  (State  v.  Saxon,  supra);  but,  on 
demurrer,  a  bad  plea  is  a  good  answer  to  a 
defective  declaration.  The  infirmity  in  the 
record  here  is  in  the  information  filed  by  the 
state.  From  the  state's  showing,  there  is 
no  good  cause  why  plaintiffs  in  error,  and 
others  residing  in  the  corporate  limits  of  En- 
terprise, should  not  inaugurate  and  main- 
tain the  municipal  corporation  in  question. 
The  statute  gives  them  this  right. 

The  judgment  of  the  circuit  court  is  re- 
versed, with  directions  that  the  demurrer  to 
the  information  be  sustained. 


DESCRIPTION  OF  CORPORATE  BOUNDARIES. 


SI 


STATE  ex  rel.  HOLCOMB  v.  INHABITANTS 
OF  TOWN  OF  POCATELLO. 

(28  Pac.  411,  2  Idaho,  90S.) 
Supreme  Court  of  Idaho.     Dec.  10,  1891. 
Appeal  from  district  court,  Bingham  coun- 
ty;   1).  W.  Standrod,  Judge. 

Action  in  the  nature  of  quo  warranto  on 
the  rehition  of  J.  T.  Holcomb  against  the  in- 
habitants of  the  town  of  Pocatello  to  have 
its  charter  declared  void.  Judgment  for  de- 
fendant.    I'hiiutifl:  appeals.     Attirmed. 

Geo.  H.  Gorman  and  Hawley  cV:  Reeves,  for 
appellant.  Smith  &;  Smith  and  T.  M.  Stew- 
art, for  respondent. 

SULLIVAN,  C.  J.  This  is  an  action,  in  the 
nature  of  quo  warranto,  brought  in  the 
name  of  the  state  by  S.  C.  Winters,  district 
attorney  of  the  fifth  judicial  district  of  the 
state  of  Idaho,  on  the  relation  of  J.  T.  Hol- 
comb, for  the  purpose  of  having  declared 
void  the  charter,  and  to  forfeit  the  franchis- 
es, of  the  municipal  corporation  known  and 
designated  as  the  "Inhabitants  of  the  Town 
of  Pocatello."  The  action  is  brought  under 
section  4()12  of  the  Revised  Statutes  of  Ida- 
ho. The  facts  as  shown  by  the  record  are 
substantially  as  follows:  On  the  ISth  day  of 
March,  1S91,  the  relator,  J.  T.  Holcomb,  ad- 
dressed his  verified  petition  to  S.  C.  Winters, 
district  attorney  of  the  fifth  judicial  district 
of  this  state,  alleging  that  the  said  relator 
resides  in  the  town  of  I'ocatello,  Bingham 
county,  Idaho,  and  that  he  is  engaged  in  the 
business  of  retailing  spirituous,  vinous,  and 
malt  liquors  and  cigars,  and  has  been  in  said 
business.  The  complaint  alleges  that  the 
Inhabitants  of  the  town  of  Pocatello,  in 
Bingham  county,  state  of  Idaho,  (under  the 
name  of  the  "Inhabitants  of  Pocatello,") 
have  since  the  'Sid  day  of  April,  1889,  used 
and  exercised  all  the  liberties,  privileges,  and 
franchises  that  an  incorporated  town  or  vil- 
lage may  use  and  exercise,  under  and  by  vir- 
tue of  the  provisions  of  section  2230  of  the 
Revised  .Statutes  of  Idaho,  without  any  right 
or  authority  so  to  do,  to  the  great  damage 
and  prejudice  of  the  state  of  Idaho  and  of 
the  relator;  that  the  relator  is  a  resident  and 
tax-payer  of  said  town;  and  prays  that  the 
defendant  be  excluded  from  all  corporate 
rights,  privileges,  liberties,  and  franchises, 
and  that  defendant  be  adjudged  not  to  be  a 
corporation.  The  answer  denies  the  allega- 
tions of  the  complaint,  and  for  a  further  de- 
fense alleges  substantially  that  the  town  of 
Pocatello  had  been  duly  incorporated  on  the 
23d  day  of  April.  1889,  by  reason  of  a  com- 
pliance with  the  terms  and  conditions  of  sec- 
tion 2224  of  the  Revised  Statutes  of  Idaho, 
particularly  setting  out  just  what  had  been 
done  thereunder.  A  general  demurrer  was 
interposed  to  said  answer,  and  overruled  by 
the  coiu't.  Thereafter  the  facts  were  agreed 
to  by  the  parties,  and  the  case  submitted  to 
the  court  for  decision,  upon  the  pleadings 
and  stipulation  of  facts.    Judgment  was  ren- 


dered in  favor  of  the  defendant,  from  which 
judgment  this  appeal  was  taken,  and  a  re- 
versal of  said  judgment  is  demanded,  and 
the  appellant  specifies  two  errors  therefor. 

The  first  error  specified  is  as  follows:  "In 
overruling  the  demurrer  to  the  answer," 
ITie  demurrer  raises  the  question  as  to 
whether  the  answer  states  facts  sutticient  to 
constitute  a  defense.  In  other  words,  the 
appellant  contends  that  the  facts  stated  in 
the  answer  do  not  show  a  legal  incorporation 
of  said  town  by  the  board  of  county  com- 
missioners, iinder  the  provisions  of  said  sec- 
tion 2224  of  the  Revised  Statutes  of  Idaho. 
Said  section  provides  as  follows:  "When  a 
majority  of  the  taxable  male  inhabitants  of 
any  town  or  village  within  this  territory  pre- 
sent a  petition  to  the  board  of  county  com- 
missioners of  the  county  in  which  said  town 
or  village  is  situated,  setting  forth  the  metes 
and  bounds  of  their  town  or  village,  together 
with  the  adjacent  boimds,  in  all  not  exceed- 
ing six  miles  square,  which  they  desire  to  in- 
clude therein,  and  praying  that  they  may  be 
incorporated,  and  police  established  for  their 
local  government,  and  the  county  commis- 
sioners are  satisfied  that  a  majority  of  the 
taxable  male  inhabitants  of  such  town  or 
village  have  signed  such  petition,  and  that 
the  prayer  of  the  petitioners  is  reasonable, 
the  board  of  county  commissioners  may  de- 
clare such  town  or  village  incorporated,  des- 
ignating in  such  order  the  metes  and  bounds 
thereof."  The  answer,  after  denying  gen- 
erally and  specifically  every  allegation  of  the 
complaint,  alleges  as  a  separate  defense  as 
follows:  (1)  That  at  the  regular  April  (1889) 
meeting  of  the  board  of  county  commission- 
ers of  Bingham  county  a  petition  was  filed 
and  presented  to  said  board  of  county  com- 
missioners, signed  by  1G9  citizens,  residents 
and  tax-pajers  of  the  town  of  Pocatello, 
praying,  among  other  things,  that  said  town 
of  Pocatello  be  incorporated,  said  petition 
being  in  words  and  figures  as  follows,  to-wit: 
"To  the  honorable  board  of  county  commis- 
sioners of  the  county  of  Bingham,  in  the  ter- 
ritory of  Idaho:  The  undersigned,  your  pe- 
titioners, respectfully  represent  to  your  hon- 
orable body  that  they  are  residents  of  the 
town  of  Pocatello.  That  the  town  of  Poca- 
tello is  situated  in  the  county  of  Bingham, 
territory  of  Idaho.  That  your  petitioners  con- 
stitute a  majority  of  the  taxable  male  in- 
habitants of  sai  1  town  of  Pocatello.  That  said 
town  is  situated  witliin  the  following  bound- 
aries, that  is  to  say:  All  in  township  six 
south,  of  range  thirty-four  (34)  east,  of  Boise 
meridian,  to-wit,  west  one-half  section  twen- 
ty-five, (25,)  all  of  section  twenty-six.  (26.) 
east  one-half  of  section  twenty-seven,  (27,) 
north-west  quarter  of  section  thirty-six,  (31),) 
north  one-half  of  section  thirty-five,  (35,) 
north-east  quarter  of  south-west  quarter  sec- 
tion thirty-five,  (35,)  north-east  quarter  of 
nortli-east  quarter  of  section  thirty-four,  (34,) 
in  all  not  exceeding  six  miles  square.  And 
your  petitioners  pray   that  they   may   be    in- 


32 


DESCRIPTION  OF  CORPORATE  BOUNDARIES. 


corporated  and  police  established  for  their  lo- 
cal government,  and  that  from  thenceforth 
they  may  be  a  body  politic  and  corporate,  by 
the  name  and  style  of  the  "Inhabitants  of  the 
Town  of  Pocatello,'  with  all  powers,  rights, 
and  privileges  of  incoiiDorated  towns  and  vil- 
lages, as  is  contemplated,  and  in  such  cases 
especially  provided,  by  the  laws  of  the  ter- 
ritory of  Idaho,  1887,  Revised  Statutes  there- 
of;" and  signed  by  1G9  residents  and  tax- 
payers of  said  town  of  Pocatello.  And  the 
jiuswer  further  alleges  facts  showing  a  sub- 
stantial compliance  by  the  board  of  county 
commissioners  with  the  provisions  of  said  sec- 
tion 2224  in  the  incorporation  of  said  town. 
The  overruling  of  the  demuner  was  not  er- 
ror. 

The  second  specification  of  error  is  as  fol- 
lows: "In  entering  judgment  against  appel- 
lant upon  the  agreed  statement  of  fact  sub- 
mitted." The  facts  agreed  to  are  substantial- 
ly as  follows:  That  the  relator,  J.  T.  Hol- 
comb,  was  a  resident  and  tax-payer  of  the 
tdwn  of  Pi  caiello  duiiug  all  the  times  mention- 
ed in  the  pleadings.  That  the  affirmative  al- 
legations of  the  answer,  relating  to  the  peti- 
tion of  a  majority  of  the  taxable  residents  of 
the  town  of  Pocatello,  asking  that  said  to-s\Ti 
be  incorporated  under  the  general  statutes  of 
Idaho,  and  the  orders  of  the  board  of  county 
commissioners  in  regard  thereto,  were  true. 
That  the  meeting  of  the  board  at  the  time  said 
petition  was  presented  was  a  regular  meeting 
of  said  board,  and  that  the  minutes  of  said 
meeting  were  not  signed  by  the  chairman  or 
clerk.  That  the  minutes  of  the  adjourned 
meeting  referred  to  in  the  answer  were  signed 
by  the  chainnan  of  said  board,  and  that  said 
meeting  was  an  adjourned  meeting.  It  will 
be  observed  that  the  petition  required  by  said 
section  2224  was  presented  to  the  board  of 
county  commissioners  at  the  regular  April 
(1889)  meeting.  That  on  the  13th  day  of 
April,  1889,  said  board  adjourned  their  said 
regular  meeting  until  the  29th  day  of  April, 
1889,  for  the  liiu-pose,  among  others,  of  c-on- 
sidering  said  petition.  The  record  made  on 
the  29th  day  of  April,  1889,  clearly  indicates 
that  the  said  board  had  satisfied  themselves 
that  the  said  petition  had  been  signed  by  a 
majority  of  the  taxable  male  inhabitants  of 
said  town,  and  likewise  had  satisfied  them- 
selves that  the  prayer  of  the  petitioners  was 
reasonable,  thus  complying  with  the  statute 
in  those  requirements.  The  record  does  not 
sliow  what  steps  were  taken  to  satisfy  the 
board  that  the  recpiisite  number  of  the  taxable 
male  inliabitants  had  signed  said  petition,  and 
tliat  the  prayer  of  the  petition  was  reasonable, 
but  the  action  of  the  board  in  granting  the 
petition  conclusively  shows  that  said  board 
complied  with  said  two  requirements,  to-wit, 
had  satisfied  themselves  that  the  required  num- 
ber of  persons  had  signed  said  petition  and 
that  their  prayer  was  reasonable. 

This  brings  us  to  the  controlling  contention 
of  appellant  in  this  case,  which  is  that  said 
town  was  not  legally  incorporated,  for  the  rea- 


son that  the  order  of  the  board  of  commission- 
ers declaring  said  town  incorporated  failed  to 
designate  the  metes  and  bounds  thereof.  The 
provision  of  said  section  2224  is  as  follows  up- 
on that  point:  "The  boai'd  of  county  commis- 
sioners may  declai-e  such  town  or  village  incor- 
porated, designating  in  such  order  the  metes 
and  bounds  thereof."  The  reason  of  this  pro- 
vision is  obvious.  Tlie  boundaries  of  a  mu- 
nicipality must  be  fixed  and  certain,  in  order 
that  all  may  know  the  scope  or  section  of 
country  embraced  within  tlie  corporate  lim- 
its, and  over  which  the  mimicipality  has  juris- 
diction. The  statute  requires  the  board  to  fix 
the  boundaries  of  the  municipality  created  by 
them  under  said  act.  In  case  the  boundaries 
are  clearly  designated  in  the  petition,  and  the 
board  by  its  order  refers  to  such  petition,  and 
grants  it,  without  any  change  or  modification, 
it  is  a  sufficient  compliance  with  said  provi- 
sion of  the  statute.  Certain!}'  no  one  will  seri- 
ouslj^  contend  that  the  boundaries  of  said  town 
are  not  set  forth  in  the  petition,  so  that  th^'y 
may  be  readily  ti'aced  and  easily  ascertained 
therefrom.  We  are  of  the  opinion  that  the  re- 
cital in  the  order  of  the  board  refen'ing  to  the 
petition  is  sutficiently  explicit  to  warrant  us  in 
regarding  the  petition  as  a  part  of  the  pro- 
ceedings, and  may  consequently  be  consider- 
ed in  pari  materia.  People  v.  Carpenter,  24 
N.  Y.  80.  We  think  there  was  a  substantial 
compliance  with  the  statute,  and  that  is  all 
that  is  required.  People  v.  Railroad  Co.,  4-5 
Cal.  306;  Water-Works  v.  San  Francisco,  22 
Cal.  440;  In  re  Water-Works,  17  Cal.  132.  In 
the  case  of  Com.  v.  Halstead,  (Pa.  Sup.)  7  Atl. 
Rep.  221,  there  was  a  variance  in  the  bound- 
aries, as  given  in  the  petition  and  draft,  or  plat 
on  file,  and  the  court  says:  "It  appears,  as  set 
forth  in  the  eighth  assignment,  that  an  error 
exists  in  the  petition  and  decree.  The  de- 
scription of  the  boundaries  there  given  is  at 
variance  with  the  draft  or  plot  on  file.  The 
proper  distances  of  the  sixth  boundary  line  and 
the  bearings  of  the  seventh  are  omitted.  This 
is  manifestly  a  mere  blunder,  and  might,  per- 
haps, upon  proper  showing,  be  amendable 
here;"  thus  holding  that  amendment  of  de- 
scription may  be  made.  The  appellant  insists 
on  a  strict  constraction  of  said  section  of  the 
statute.  Section  4  of  the  Revised  Statutes  of 
Idaho,  among  other  provisions,  provides  that 
"the  Revised  Statutes  establish  the  law  of  this 
state  respecting  tlie  subjects  to  which  they  re- 
late, and  their  provisions,  and  all  proceedings 
under  them,  are  to  be  liberally  construed,  with 
a  view  to  effect  their  objects  and  to  promote 
justice."  The  proceedings  of  the  board  of  coun- 
ty commissioners,  under  the  statute,  in  the  in- 
conioration  of  said  town,  are  commande{l  by 
said  section  4  to  be  liberally  construed  with  a 
view  to  effect  the  intended  object.  The  said 
town  was  incorporated  on  the  29th  day  of 
April,  1889,  and  used  and  exerciseil  the  liber- 
ties, privileges,  and  franchises  which  it  was 
authorized  to  use  and  exercise  under  the  laws 
of  Idaho,  without  question,  until  the  com- 
mencement of   this  suit,  on  March  24,   1S91. 


DESCRIPTION  OF  CORPORATE  BOUNDARIES. 


33^ 


Thus  for  nearly  two  yeare  the  legality  of  said 
corporation  was  not  questioned.  No  appeal 
was  taken  from  the  order  of  the  boai'd  incor- 
porating said  town.  The  grievance  of  the  re- 
lator is  that  said  municipality  insisted  on  tax- 
ing him  $100  per  month  for  retailing  cigars 
and  spirituous  liquors  within  the  boundaries 
of  said  municipality.  Charters  of  municipal 
corporations,  which  have  for  their  objects  the 
ABB.CORP.-S 


protection  of  the  lives  and  property  of  the  [ 
people,  in  densely  populated  districts,  should  ' 
not  be  overturned  and  set  at  naught  except  , 
for  very  grave  reasons.  The  corporate  exist-  / 
ence  of  such  municipalities  should  be  main-  ' 
tained,  if  possible.  The  judgment  of  the  court 
below  is  affirmed,  with  costs. 

MORGAN  and  HUSTON,  JJ.,  concur. 


34 


WHAT  TERRITORY  MAY  BE  AXXEXED. 


FORSYTH  Gt  al.  v.  CITY  OF  HAMMOND. 
(41  N.  E.  950,  142  Ind.  505.) 

Supreme   Court  of  Indiana.     Nov.  7,   1895. 

On  rehearing.  For  former  report,  see  40  N. 
E.  267. 

Miller,  Winter  &  Elam,  A.  L.  Jones,  J.  W, 
Youcbe,  and  Tbos.  J.  Merrifield,  for  appel- 
lants.    E.  D.  Crumpacker,  for  appellee. 

HOWARD,  C.  J.'  One  of  the  positions  tak- 
en by  counsel  in  support  of  their  petition  for 
a  rehearing  of  this  case  Is  that  the  circuit 
court  had  no  jui-isdiction  of  the  appeal  from 
the  board  of  county  commissioners,  for  the 
reason  that  the  annexation  of  territoi-y  to  a 
city  is  a  legislative,  and  not  a  judicial,  func- 
tion,  and,   as    such,   in    case    of    unplatted 
lands,  the  board  of  county  commissioners  is 
given  sole  and  final  jurisdiction  in  the  prem- 
ises./' The  proposition  so  advanced  was  not 
urged  in  the  original  argument,  nor  on  the 
trial  of  the  cause,  and  is  now  brought  to  our 
attention  for  the  first  time;    but,  as  it  is  a 
question  that  affects  the  jurisdiction  of  the 
trial  court,  and  also  of  this  court,  it  is  one 
that  will  be  entertained  at  any  time. 
,/-   It  may  be  conceded  that  annexation  of  ter- 
ritoiT  to  a  city  is  a  legislative  function.    This 
function  is  exercised  by  the  common  council 
when  it  resolves  to  annex  certain  described 
lands  to  the  city,  and  to  present  a  petition 
therefor  to  the  county  board.    It  must  be  ad- 
mitted, however,  as  we  think,  that  the  after 
proceedings  had  upon  the  petition  are  of  a 
judicial  nature.     The  petition  must  give  the 
reasons  why,  in  the  opinion  of  the  council, 
the  annexation  should  take  place.     The  suffi- 
ciency of  such  reasons,  and  whether  tliey  in 
fact    exist,    call    for    the   decision   of    the    tri- 
bunal appointed  to  hear  the  petition.     Notice 
of  the  presentation  of  the  petition  is  also  pro- 
vided   for,    and    adverse    parties    are    thus 
brought  in.     Whether  the  proper  preliminai-y 
steps  have  been  taken,  whether  the  reasons 
given  in  the  petition  are  true  and  are  suffi- 
cient, seem  to  be  questions  calling  for  a  ju- 
dicial examination  and  decision.     In  a  sim- 
ilar case   (Grusenmeyer  v.    City   of   Logans- 
port,  70  Ind.  549)  it  was  said  by  Woods,  J., 
speaking  for  this  court,  that  "the  decision  of 
the  board  in  such  a  case  is  judicial,  and  not 
merely  administrative  or  legislative."    But  if 
the  board,  in  considering  and  deciding  upon 
the  petition,  acts  in  a  judicial  capacity,  cer- 
tainly the  legislature  may,  as  it  has  done  in 
this  case,  provide  for  an  appeal  to  the  courts, 
to  determine  whether  the  city  conncil  and  the 
county  board  have   complied  with  the  stat- 
utory requirements  in  the  action  taken.    It  is 
the  law  itself,  as  has  been  said,  that  fixes 
the  conditions  of  annexation;    and  the  office 
of  the  board  and  of  the  court  is  lo  detennine 
whether  the  conditions  so  prescribed  by  the 
law  have  been  complied  with.     The  legisla- 
ture has  expressly  provided  for  such  judicial 
determination  by  the  board  and  for  an  appeal 
therefrom  to  the  courts,  and  this  court  has 


frequently  recognized  the  right  to  such  ap- 
peal. Section  4224,  Rev.  St.  1S94  (section 
3243,  Rev.  St.  ISSl);  Catterlin  v.  City  of 
Frankfort,  87  Ind.  45;  Chandler  v.  City  of 
Kokomo,  137  Ind.  295,  36  N.  E.  S47:  Wilcox 
v.  City  of  Tipton  (at  this  term)  42  N.  E.  614. 
See,  also,  Manufacturing  Co.  v.  Emery  (at 
this  term)  41  N.  E.  814.  See,  also.  City  of 
Wahoo  T.  Dickinson,  23  Neb.  426,  36  N.  W. 
813. 

In  Forsythe  v.  City  of  Hammond,  6S  Fed. 
774,  Baker,  J.,  in  passing  upon  an  application, 
made  to  the  United  States  circuit  court  for 
the  district  of  Indiana  by  one  of  the  appel- 
lants in  the  case  at  bar,  to  enjoin  the  api)el- 
lee  from  collecting  taxes  upon  the  lands  an- 
nexed   in   this    proceeding,    speaking    of    the 
question  now  under  consideration  said:    "The  i 
power  to   hear  and   determine   whether   the  / 
conditions   prescribed   by   law   for  the  crea- 
tion,   enlargement,    or  contraction   of  a  mu-  j 
nicipal   body  exist  is  judicial  in  its  nature, 
and  may  be  appropriately  conferred  upon  the 
courts.    The   creation,    enlargement,    or   con-  ] 
traction  of  a  municipal  body  is  not  the  act 
of  the  court,  but  is  the  act  arwl  result  of  the 
law.    The  court  simply  determines   whether 
the  conditions  are  present   which   authorize 
the  creation  of  a  municipal  body,  or  the  en- 
largement or  contraction  of  its  limits;    and, 
when  these   conditions  are  judicially  ascer-  ' 
tained,  the  law,  ex  proprio  vigore,  creates  the 
municipal  body,  or  enlarges  or  conti'acts  its 
boundaries." 

Counsel  next  repeat  the  contention  that  the 
action  of  the  common  council  of  East  Chi- 
cago, in  attempting  to  annex  to  that  city  cer- 
tain of  the  lauds  here  in  controversy,  with- 
out fii-st  having  secured  the  assent  of  the  own- 
ers of  that  part  thereof  adjacent  to  the  city, 
cannot  be  attacked  collaterally  in  this  case. 
We  cited  in  the  original  opinion  numerous 
authorities  to  the  proposition  that  the  Juris- 
diction of  an  inferior  tribunal,  as  a  common 
council,  may  be  attacked  collaterally,  and 
evidence  offered  to  show  that  the  tribunal 
did  not  have  jurisdiction  of  the  subject  mat- 
ter or  of  the  parties.  We  have  attentively 
read  the  acute  analj'sis  made  of  those  au- 
thorities by  counsel,  and  are  still  satisfied 
that  the  authorities  so  cited  do  establish  the 
truth  of  the  proposition  stated.  We  are  in- 
clined to  think  that  counsel  have  not  careful- 
ly distinguished  between  facts  as  to  the  ju- 
risdiction of  a  body  and  facts  as  to  the  pro- 
ceedings and  acts  of  that  body  after  jurisdic- 
tion is  shown.  If  there  is  jurisdiction,  then 
the  decision  that  follows  is  conclusive,  except 
on  direct  attack.  But  jurisdiction  itself  may 
always  be  inquired  into,  and  it  is  only  after 
jurisdiction  is  established,  both  of  the  sub- 
ject matter  and  of  the  person,  that  the  de- 
cision of  the  tribunal  will  be  invulnerable  to 
collateral  attack.  As  said  by  this  court  in 
Board  v.  Markle,  46  Ind.  96,  cited  in  the 
original  opinion:  "The  facts  which  it  is  said 
must  be  sliown  to  exist  before  the  matter  can 
be  within  the  jurisdiction  of  an  inferior  court. 


WHAT  TERlUTOllY  MAY    JJE   ANNEXED. 


35 


and  Tvhich  can  be  luquirod  into  collaterally, 
are  such  as  in  the  absence  of  which  the  court 
cannot  rightfully  hear  and  determine  any 
question  touching  the  matter  in  controversy. 
Hence  a  recital  in  the  record  of  such  facts 
may  be  shown  to  be  false."  See,  also,  State 
V.  Hudson,  37  Ind.  VJS.  As  bearing  upon  the 
question,  see,  further.  Rape  v.  Ileaton,  9 
Wis.  328;  Thompson  v.  Whitman,  IS  Wall. 
457;  Withers  v.  I'atterson,  27  Tex.  491;  !Scott 
V.  McXeal,  154  U.  S.  34,  14  Sup.  Ct.  IIOS; 
Works,  Courts,  §§  20,  23,  2.5,  2G. 

In  the  case  at  bar  it  is  not  doubted  that 
the  owners  of  the  lands  adjacent  to  the  citj 
of  East  Chicago,  and  which  it  was  attemptec 
to  annex  to  the  city,  had  never  assented  to 
such  annexation,  but  that  the  only  petition  for 
annexation  presented  to  the  common  council 
was  by  owners  of  lands  not  adjacent  to  the 
city;  yet  the  claim  is  made  that  the  question 
of  the  right  of  the  council  to  annex  such  ad- 
jacent lands,  and  also  the  nonadjacent  lands, 

I  is  foreclosed  by  the  record.  The  city  council 
assumed   tbat   the  petitioners   for  annexation 

f  were  the  owners  of  the  lands  adjacent  to  the 
city,   and  it  is   said   that  this  assumption   is 

f  conclusive,  although  in  fact  the  owners  of  the 
adjacent  Lands  did  not  assent  to  such  annex- 

'   ation.    If  that  contention  were  good,  why  could 

I    not  any  person  go  before  a  city  council,  claim 

I  falsely  to  be  the  owner  of  adjacent  lands,  and 
petition  for  their  annexation  to  the  city,  and, 

;  if  the  record  of  the  common  council  should 
show  that  upon  such  petition  the  lands  were 
annexed,  how  could  the  decision  be  collateral- 
ly called  in  question?  Tlie  law,  however,  gives 
the  council  jurisdiction  to  annex  adjacent 
lands  only  on  the  written  assent  of  the  own- 
ers. It  is  clear  that  the  common  council  had 
no  jurisdiction  of  the  subject  matter. 
In    cases  cited   in   the   original   opinion    we 

[  think  it  is  shown  that  this  court  has  more 
than  once  decided  practically  the  same  ques- 
tion here  raised,  namely,  that  attempts  at 
annexation  of  lands  to  cities  made  by  com- 
mon councils  not  having  jurisdiction  are  void, 
and  may  be  attacked  collaterally,  as  well  as 
directly.  City  of  IndLanapolis  v.  McAvoy,  86 
Ind.  587;  City  of  Delphi  v.  Startzman,  104 
Ind.  343,  3  N.  E.  9.S7;  City  of  Indianapolis  v. 
Patterson,  112  Ind.  344,  14  N.  E.  551. 

Counsel  devote  much  argument  and  research 
to  show  that  where  the  jurisibction  of  an  in- 
ferior tribimal  depends  upon  a  fact  which  such 
tribunal  is  re(iuired  to  ascertain  and  settle  by 
its  decision,  such  decision,  in  general,  is  con- 
clusive.   It  needed  but  a   statement   of  that 


proposition  to  establish  its  truth.  But  it  does 
not  follow  that  such  tribunal,  by  claiming  ju- 
risdiction, can  establish  it.  If  the  law  fixes 
wluit  is  necessary  to  acquire  jurisdiction,  the 
tribunal  cannot  take  jurisdiction  not  so  au- 
thorized by  law.  The  law  requires  notice  to 
parties  who  are  to  be  subjected  to  the  decis- 
ions of  the  tiibuual.  Jurisdiction,  therefore, 
cannot  be  takei^  without  such  notice.  But  as( 
the  tribunal  nmst  itself  decide  whether  the  no-  / 
tice  is  sutticient,  its  decision  on  such  sufficiency  / 
is  conclusive.  So,  when  a  petition  is  to  be' 
filed,  such  petition  is  necessary  to  give  ju- 
risdiction, and.  the  tribunal,  by  finding  that  a 
petition  was  filed,  when  in  fact  it  was  not, 
could  not  take  jurisdiction.  But  as  the  tri- 
bunal is  the  only  body  to  pass  upon  the  suffi- 
ciency of  the  petition,  whether  it  is  in  prop- 
er form,  has  the  requisite  number  of  signers, 
and  whether  the  persons  signing  have  the  prop- 
er qualifications,  etc,  its  decision  on  such 
questions  is  final. 

St(xldard  v.  Johnson,  75  Ind.  20,  one  of  the 
leading  cases  on  this  subject,  and  relied  upon 
by  counsel,  is  in  harmonj'  with  this  holding. 
That  case  decides  that  the  presentation  of  a 
petition   for   the   improvement  of  a   highway 
gave    the    county    commissioners    jurisdiction 
over  the  subject  matter  of  the  petition,  and 
that  whether  the  petition  was  in  all  resijects 
sufficient  was  a  jurisdictional  question,  which 
the  board  had  a  right  to  decide  for  itself.    The 
couii:,  however,  is  careful  to  say  that  it  is  not 
to  be  understood  as  holding  that  "any  peti- 
tion, however  defective  or  irrelevant,  will  be 
deemed  sufficient  to  invoke  the  jurisdiction  of 
the   commissioners    to   decide   upon    its   suffi- 
ciency, and  to  impart  validity  to  that  decision 
as  against  collateral  attack."    The  correct  rule  ) 
is   stated   in  the   same   case,    "that  once  the  I 
jurisdiction  of  an  inferior  tribunal  is  estab-  \ 
lished  over  the  subject  matter  and  the  parties  I 
to  a  proceeding  wliich  may  be  had  before  it, 
the  same  presumptions  are  indulged  in  favor  I 
of  the  regularity  of  its  action  as  prevails  in  ' 
favor  of  the  action  of  the  courts  of  general 
powers."    Had  the  common  council  in  the  case  1 
before  us  actjuired  jurisdiction  over  the  lands 
to  be  annexed  and  lying  adjacent  to  the  city, 
and  had  it  also  acquired  jurisdiction  over  the 
owners   of   such   lands,    then  the   subsequent 
proceedings,  however  defective,  would  not  be 
void;     but,    not    having   acliuired   jurisdiction 
over  the  lands  or  over  its  owners,  the  annex-  I 
ation  proceedings  were  a  nullity.i  ' 


1  Part  of  the  opinion  is  omitted. 


36 


APPORTIONMENT  OF  PROPERTY  AND  DEBTS  IN  CASE  OF  DIVISION. 


JOHNSON  et  al.  v.  CITY   OF   SAN   DIEGO. 
(No.  19.4S3.) 

(42  Pac.  249,  109  Cal.  468.) 

Supreme  Court  of  California.      Oct.  9.  1895. 

In  bank.  Appeal  from  superior  court,  San 
Diego  county;    E.  S.  Torrance,  .ludge. 

Action  by  P.  L.  .Tolmson  and  others  against 
the  city  of  San  Diego  to  determine  what 
proportion,  if  any,  of  the  bonded  indebted- 
ness of  San  Diego  was  properly  chargeable 
on  certain  territory  excluded  from  that  city. 
From  the  judgment  rendered,  defendant  ap- 
peals.    Affirmed. 

William  H.  Fuller  and  Clarence  L.  Barber, 
for  appellant.  S.  M.  Shortridge  and  Gibson 
&  Titus,  for  respondents. 

HEN  SHAW,  J.  Appeals  from  the  judg- 
ment and  from  the  order  denying  a  new 
trial.  Under  an  act  of  the  legislature  ap- 
proved March  19.  1S.S9  (St.  1SS9,  p.  3oG),  a 
portion  of  the  territory  formerly  embraced 
within  the  corporate  limits  of  the  city  of 
San  Diego  was  excluded  therefrom.  The  act 
referred  to  was  in  its  nature  permissive.  It 
provided  for  the  calling  of  an  election  upon 
petition,  at  whicli  election  tlie  qualified  elect- 
ors within  the  territory  proposed  to  be  seg- 
regated should  vote  separately  from  the  oth- 
er voters  of  the  mimicipal  corporation,  and 
the  votes  cast  in  such  territory  should  be 
canvassed  separately  from  the  votes  cast  by 
the  other  electors  of  the  municipality.  If  a 
majority  of  the  votes  cast  in  the  territory 
proposed  to  be  excluded  and  a  majority  of 
the  votes  cast  in  the  municipality  proper 
should  both  be  for  the  segregation,  then, 
after  certain  formalities  had  been  complied 
with,  the  territory  should  cease  to  be  a  part 
of  the  municipal  corporation,  "provided  [so 
runs  the  law]  that  nothing  contained  in  this 
act  shall  be  held  to  relieve  in  any  manner 
whatsoever  any  part  of  such  territory  from 
any  liability  for  any  debt  conti'acted  by  such 
municipal  corporation  prior  to  such  exclu- 
sion: and  provided  further  that  such  mu- 
nicipal corporation  is  herel)y  authorized  to 
levy  and  collect  from  any  territory  so  exclud- 
ed from  time  to  time,  such  sums  of  money 
as  shall  be  found  due  from  it  on  accoimt  of 
its  just  proportion  of  liability  for  any  pay- 
ment on  the  principal  or  interest  of  such 
debts;  such  assessment  and  collection  shall 
be  made  in  the  same  manner  and  at  the 
same  time  that  such  assessment  and  collec- 
tion is  levied  and  made  upon  tlie  property  of 
such  municipal  corporation  for  any  payment 
on  account  of  such  debts:  and  provided  fur- 
ther that  any  such  territory  so  excluded 
from  any  municipal  cor])oration  may  at  any 
time  tender  to  the  legi.'^lative  body  of  such 
municipal  corporation  the  amount  for  which 
such  territory  is  hable  on  account  of  such 
debts,  and  after  such  tender  is  made  such 
authority  as  is  herein  given  municipal  cor- 
porations to  levy  and  assess  taxes  on  such 


excluded  territory  shall  cease."  Under  this 
law.  the  territory  known  as  the  "Coronado 
Beach."  which  contains  the  land  of  these 
plaintiffs,  was  excluded  from  the  corporate 
control  of  the  city  of  San  Diego.  At  the 
time  of  this  exclusion,  the  city  of  San  Diego 
had  a  bonded  indebtedness  of  $484,000;  and, 
after  this  exclusion,  the  city  continued  to  as- 
sess and  levy  taxes  upon  the  detached  ter- 
ritory to  meet  the  requirements  of  this  bond- 
ed indebtedness,  which  taxes  these  plaintiffs 
duly  paid.  In  1893  the  legislature  passed  an 
act  entitled  "An  act  providing  for  the  ad- 
justment, settlement  and  payment  of  any  in- 
debtedness existing  against  any  city  or  mu- 
nicipal corporation  at  the  time  of  exclusion 
of  territory  therefi'om  and  the  division  of 
property  thereof"  (St.  189;J,  p.  53G).  Plain- 
tiffs availed  themselves  of  the  provision  of 
this  act  to  have  the  court  determine  what 
proportion,  if  any,  of  the  bonded  indebted- 
ness of  San  Diego,  was  properly  chargeable 
against  the  excluded  territory.  The  demur- 
rer of  the  defendant  city  to  their  petition 
was  overruled;  and  the  court,  after  hearing 
evidence,  found  the  existence  of  the  bonded 
indebtedness;  that  all  of  the  moneys  re- 
ceived by  the  city  and  evidenced  by  this  in- 
debtedness had  been  expended  for  a  sewer 
system,  for  the  purchase  of  school  sites  and 
the  ei'ection  of  schoolhouses,  for  refunding  a 
pre-existing  debt  of  the  city,  and  for  clearing 
its  titles  to  certain  real  estate,  and  for  buy- 
ing certain  rights  of  way;  and  that  no  por- 
tion of  the  money  had  been  expended  upon 
or  within  the  excluded  territory.  The  value 
of  the  property  belonging  to  the  city  at  the 
time  of  the  segregation  was  found  to  be 
§000.000,  all  of  which  remained  within  its 
boundaries  and  under  its  control  after  the 
segregation.  It  was  further  found  that  the 
city  of  San  Diego  had  never  made  any  im- 
provements in  the  excluded  territory,  and 
had  never  owned  any  property  in  it.  The 
ratio  of  the  value  of  the  excluded  territory 
to  that  of  the  city  immediately  pi'eceding 
the  exclusion  was  as  1  to  14.  Under  these 
findings,  and  in  strict  accord  with  the  dic- 
tates of  the  statute,  the  court  adjudged  that 
there  was  nothing  due  or  to  become  due 
from  the  excluded  territory  to  the  city. 

Tlie  chief  contention  of  the  defendant, 
raised  upon  demurrer,  pressed  in  its  motion 
for  a  nonsuit,  and  urged  against  the  judg- 
ment, may  be  thus  stated:  The  property 
owners  of  the  city  and  the  property  owners 
of  the  excluded  territory,  when,  in  accord- 
ance with  the  permissive  act  of  the  legisla- 
ture (St.  1889,  p.  S.jtj).  they  elected  to  segre- 
gate Coronado  Beach,  did  so  under  a  con- 
tract expressed  in  the  act  itself,  by  which 
i  the  property  owners  of  the  excluded  terri- 
i  tory  were  allowed  to  remove  their  land  from 
the  jurisdiction  of  the  city,  with  the  under- 
standing that  they  should  continue  to  pay 
their  pro  rata  share  of  the  municipal  debts 
existing  at  the  time  of  the  exclusion;  that 
I  the  rights  of  the  city  vested  under  this  con- 


APPOKTIOXMENT  OF  PROPERTY  AND  DEBTS  IN  CASE  OF  DIVISION. 


37 


tract  cannot  be  destroyed  or  impaired  by 
subsequent  lesisl.ition;  and  tliat,  therefore, 
to  the  parties  to  this  controversy  the  stat- 
ute of  1893  has  no  applical)ility. 

This  contention  is  first  met  by  the  respond- 
ents with  tlie  declaration  tliat  the  act  of  1SS9 
did  not  iuiijose  or  moan  to  impose  a  pro  rata 
liabiiity  upon  the  excluded  territory,  but  only 
a  liability  for  a  just  proportion  of  the  debt, 
which  proportion  was  a  subject  of  future  as- 
certainment or  determination;  and  nnich  nice 
argument  is  advanced  in  its  support.  But 
the  language  of  the  proviso,  tliat  "nothing 
contained  in  the  act  shall  be  held  to  relieve  in 
any  manner  whatsoever  any  part  of  such  ter- 
ritory from  any  lialiility  for  any  debt  contract- 
ed by  such  mimieipal  corporation  prior  to  such 
exclusion,"  would  seem  to  be  a  comprehensive 
pronunciation  that  the  segregated  territory 
should,  after  exclusion,  be  held  by  the  same 
liabilities  as  bound  it  before;  and,  as  before 
its  exclusion  it  was  liable  for  its  pro  rata 
share  of  these  debts,  it  must  be  that  after  ex- 
clusion it  remained  subject  to  the  same  liabil- 
ities. We  think,  therefore,  that,  by  the  only 
just  and  reasonable  interjiretation  of  which 
the  act  in  question  is  susceptil)le,  the  legisla- 
ture, in  permitting  the  division,  exercised  its 
undoubted  power  to  adjust  the  burden  of  the 
existing  corporate  debt,  and  decreed  that  the 
excluded  territory  should  continue  to  bear  its 
former  proportion  of  that  burden. 

The  question  that  is  left  for  consideration  is 
that  of  the  power  of  the  legislature  to  change 
and  readjust  the  burden  of  such  an  indebted- 
ness after  having,  in  the  act  of  separation,  de- 
clared in  what  manner  it  should  be  borne. 
Municipal  corporations,  in  their  pul)lic  and  po- 
litical aspect,  are  not  only  creatures  of  the 
state,  but  are  parts  of  the  machinery  by  which 
the  state  conducts  its  governmental  affairs. 
Except,  therefore,  as  restrained  by  the  consti- 
tution, the  legislature  may  increase  or  dimin- 
ish the  powers  of  such  a  corporation, — may  en- 
large or  restrict  its  territorial  jurisdiction,  or 
may  destroy  its  corporate  existence  entirely. 
Says  Cooley:  "Restraints  on  the  legislative 
power  of  control  must  be  found  in  the  consti- 
tution of  the  state,  or  they  must  rest  alone  in 
the  legislative  discretion.  If  the  legislative  ac- 
tion in  these  cases  operates  injuriously  to  the 
municipalities  or  to  individuals,  the  remedy  is 
not  with  the  courts.  The  courts  have  no 
power  to  interfere,  and  the  people  must  be 
looked  to,  to  right,  through  the  ballot  box,  all 
these  wrongs."  Cooley,  Const.  Lim.  (6th  I'^d.) 
p.  229.  "A  city,"  says  Mr.  Justice  Field,  in 
New  Orleans  v.  Clark,  95  U.  S.  044,  "is  only  a 
political  subdivision  of  the  state,  made  for  the 
convenient  administration  of  the  government. 
It  is  an  instrumentality,  with  powers  more  or 
less  enlarged,  according  to  the  requirements  of 
the  public,  and  which  may  be  increased  or  re- 
pealed at  the  will  of  the  legislature."  This 
right  of  legislative  control,  arising  from  the 
very  nature  of  the  creation  of  such  corpora- 
tions, is  established  imder  the  well-settled  doc- 
trine that  such  corporations  have  no  vested 


[  rights  in  powers  conferred  upon  them  for  civil, 
political,  or  administrative  pui-poses;  or,  as 
Dillon  states  it:  "Legislative  acts  respecting  i 
the  political  and  governmental  powers  of  mu-  ' 
nicipal  corporations  not  being  in  the  nature  of 
contracts,  the  provisions  thereof  may  be  chan- 
ged at  pleasure  where  the  constitutional  rights 
of  creditors  and  othere  are  not  invaded."  Dill. 
Mun.  Corp.  (4th  Ed.)  §  (>3. 

The  act  of  the  legislature  in  relieving  Coro- 
nado  Beach  from  the  corporate  control  of  ^^an 
Diego  and  in  adjusting  the  burden  of  tlie  city's 
debt,  was  imdoubtedly  the  exercise  of  a  prop- 
er power  directed  to  the  political  and  govern- 
mental affairs  of  the  municipality.  That  the 
legislature,  by  the  terms  of  the  act  segregat- 
ing the  territory,  had  the  right  to  disp(jse  of 
the  common  property,  and  provide  the  mode 
and  manner  of  the  payment  of  the  connnon 
debt,  imposing  its  burden  in  such  proportions 
as  it  saw  fit,  is  a  proposition  undisputed  and 
indisputable.  It  is  equally  well-settled  law 
that,  when  the  act  of  segregation  is  silent  as 
to  the  common  property,  and  common  debts, 
tJie  old  corporation  retains  all  the  property 
within  its  new  boundaries,  and  is  charged  with 
the  payment  of  all  of  the  debts.  Upon  these 
two  propositions  the  cases  are  both  numerous 
and  harmonious.  People  v.  Alameda  Co.,  26 
Cal.  641;  Hughes  v.  Ewing,  93  Cal.  414,  28 
Pac.  1007;  Los  Angeles  Co.  v.  Orange  Co.,  97 
Cal.  329,  32  Pac.  310;  Town  of  Depere  v. 
Town  of  Bellevue,  31  Wis.  120;  Laramie  Co. 
V.  Albany  Co.,  92  U.  S.  307;  Lycoming  v. 
Union,  l.=5  Pa.  St.  160;  Mount  Pleasant  v. 
Beck  with,  100  U.  S.  514;  Lay  ton  v.  City  of 
New  Orleans,  12  La.  Ann.  515;  Beloit  v.  Mor- 
gan, 7  Wall.  019.  There  is  authority,  how- 
ever, holding  that,  when  the  legislature  has 
spoken  in  the  original  act,  rights  vest  under 
it  which  may  not  be  impaired;  and  it  is  upon 
these  cases  that  appellants  rely.  Thus,  in 
Bowdoinham  v.  Richmond,  6  Greenl.  93,  the 
supreme  court  of  Maine  decided  in  1829  that 
as  the  act  of  the  legislature  dividing  the  town 
of  Bowdoinham,  and  incorporating  a  part  of  it 
into  a  new  town,  by  the  name  of  Richmond, 
enacted  that  the  latter  should  be  held  to  pay 
its  proportion  towards  the  support  of  all  pau- 
pers then  on  expense  in  Bowdoinham,  a  later 
act  exonerating  the  new  town  from  this  lia- 
bility was  void.  The  court  held  that  by  the 
former  act  a  vested  right  of  action  arose  in 
favor  of  the  old  town  against  the  new,  and 
that  the  later  act,  in  destroying  this  right,  im- 
paired tlie  obligation  of  the  contract  on  the 
part  of  Richmond  created  by  the  first  act. 
Just  how  the  court  reached  the  conclusion  that 
a  contract  was  created  by  the  first  act  is  not 
plain,  but  it  seems  to  have  been  based  some- 
what upon  the  conviction  that  the  assent  of 
the  old  town  was  necessary  to  the  segregation. 
The  opinion,  however,  looks  for  authority  to 
the  case  of  Hampshire  Co.  v.  Franklin  Co. 
(decided  in  1S90)  10  Mass.  75.  In  that  case 
the  legislature  had  created  the  county  of 
Franklin  out  of  territory  formerly  a  part  of 
the  county  of  Hampshire.     The  act  was  si- 


.•482470 


38 


APPORTIONMENT  OF  PROPERTY  AND  DEBTS  IN  CASE  OF  DIVISION. 


lent  as  to  the  disposition  of  the  public  prop- 
erty and  the  public  debt.  By  an  act  passed 
two  years  later,  the  legislature  provided  in 
effect  that  if,  at  the  time  of  the  segregation, 
there  were  funds  belonging  to  the  county  of 
Hampshire  in  excess  of  its  debts,  the  new 
county  should  be  entitled  to  such  proportion  of 
those  funds  as  the  assessed  value  of  the  prop- 
erty of  the  new  county  bore  to  the  assessed 
value  of  the  property  of  the  old.  The  supreme 
court  decided,  in  accordance  with  the  undoubt- 
ed rule,  that  as  the  first  act  was  silent  upon 
the  subject,  all  of  the  common  property  with- 
in its  limits  belonged  to  the  old  county,  which 
was  likewise  charged  with  all  existing  debts. 
It  further  held  that  rights  vested  under  this 
act,  and  that  the  later  act  providing  for  an 
apportionment  violated  these  rights  in  attempt- 
ing to  give  the  property  of  Hampshire  to 
Franlilin  county;  in  other  words,  that  the 
later  act  created  a  debt  from  Hampshire  to 
Franklin  county  which  before  had  not  existed. 
It  is  to  be  noticed  that  in  this  case  the  original 
act  was  silent  as  to  common  property  and 
debts,  but  as,  in  such  case,  the  law  steps  in 
and  makes  disposition  of  them,  the  silence  was 
deemed  equivalent  to  an  affirmative  declara- 
tion of  the  legislature  making  disposition 
which  could  not  afterwards  be  modified. 

But,  distinguished  as  are  the  courts  which 
have  announced  this  doctrine,  their  views  have 
not  been  followed,  and  the  decisions  them- 
selves have  been  elsewhere  criticised  and  re- 
jected, until  it  may  be  safely  said  that  it  is 
the  general  rule  that,  where  the  original  act 
does  not  make  disposition  of  the  common 
property  and  debts,  the  legislature  may  at  any 
subsecpient  time,  by  later  act,  apportion  them 
in  such  manner  as  seems  to  be  just  and  equi- 
table. Under  the  decisions  adopting  this  rule, 
the  theory  of  vested  rights  and  contractual  re- 
lations is  rejected  as  being  a  false  quantity  in 
the  dealings  of  the  sovereign  state  with  its 
governmental  agents  and  mandatories;  and 
while  it  is  not  denied  tliat  the  state  may  make 
a  contract  with  a  municipal  corporation,  or 
may  permit  municipal  corporations  to  enter  in- 
to binding  contracts  with  each  other,  which 
contracts  it  cannot  impair,  these  contracts 
must  be  in  their  nature  private,  although  the 
public  may  derive  a  common  benefit  from 
them,  and  the  contracting  cities  are  as  to  them 
measured  by  the  same  rules  and  entitled  to 
the  same  protection  as  would  a  private  corpo- 
ration. The  subject  of  such  a  contract,  how- 
ever, can  never  be  a  matter  of  municipal  pol- 
ity or  of  civil  or  political  power,  for  the  legis- 
lature itself  cannot  surrender  its  supremacy  as 
to  these  things,  and  thus  abandon  its  preroga- 
tives, and  strip  itself  of  its  inherent  and  in- 
alienable right  of  control. 

Of  the  cases  so  holding,  either  directly  or 
Impliedly,  a  fcAV  may  profitably  be  mention- 
ed: In  County  of  Kicl'land  v.  Coimty  of  Law- 
rence, 12  111.  1,  the  facts  were  that  the  for- 
mer ooimty  had  been  carved  out  of  the  teiTl- 
tory  of  the  latter  by  an  act  making  no  dispo- 
sition of  the  county  property.     The  state  had 


given  to  the  county  of  Lawrence  a  large  sum 
of  money,  which  it  held  at  the  time  of  seg- 
regation. By  a  later  act  the  legislature  de- 
clared that  the  new  county  should  be  entitled 
to  receive  from  the  old  a  certain  proportion  of 
this  fund,  which  sum  the  old  county  refused 
to  pay  under  the  claim  of  vested  right  and 
owuei-ship.  The  supreme  court  upheld  the 
act,  declaring  that  there  was  no  contract  be- 
tween the  stata  and  the  old  county,  which 
was  merely  the  state's  agent.  The  case  of 
Hampshire  Co.  v.  Franklin  Co.,  supra,  is  un- 
favorably reviewed.  In  Perry  Co.  v.  Conway 
Co.,  52  Ark.  430,  12  S.W.S77,  the  original  act, 
detaching  territory,  made  no  apportionment 
of  the  debt.  A  later  act,  which  did  so,  was 
attacked  as  unconstitutional.  The  supreme 
court  there  said:  "The  earlier  doctrine  (still 
followed  by  some  courts)  was  that  the  act 
detaching  the  territoiy  must  apportion  the 
debt,  and  that  it  could  not  be  subsequently 
taken  from  the  old  and  imposed  upon  the 
new  county.  Hampshire  Co.  v.  Franklin  Co., 
16  Mass.  7.5;  Bowdoinham  v.  Richmond,  6 
Gi'eenl.  93.  The  better  doctrine  is  that,  ttie 
power  of  the  legislature  to  impose  the  debt 
of  the  one  county  upon  another  depending  up- 
on the  existence  of  a  moral  obligation  from 
the  new  county,  or  the  county  receiving  new 
territory,  to  pay  part  of  the  old  debt,  the 
legislature  may  so  ordain  whenever  it  finds 
the  moral  obligation  to  exist."  In  Dunmore's 
Appeal,  52  Pa.  St.  374,  four  boroughs  were 
erected  in  a  township  which  was  heavily  in 
debt.  By  act  afterwards  passed,  the  burden 
of  the  debt  was  to  be  appoi"tioned  by  com- 
missioner between  the  boroughs  and  the 
township.  The  supreme  court  of  Pennsyl- 
vania upheld  the  act.  In  Layton  v.  City  of 
New  Orleans,  12  La.  Ann.  515,  the  act  of  the 
legislature  consolidating  several  municipali- 
ties into  one  government,  known  as  the  "City 
of  New  Orleans,"  provided  that  the  debts  of 
each  should  be  liquidated  by  taxation  upon 
its  own  inhabitants.  Afterwards,  by  another 
act,  it  was  provided  that  the  debts  should  be 
paid  by  taxation  uniformly  upon  all  the  prop- 
erty of  the  new  city.  The  coui-t  held  that  the 
earlier  act  was  not  a  contract,  and  no  rights 
vested  under  it;  and  that,  as  in  these  matters 
the  legislature  is  supreme,  it  could  change  its 
policy  and  i-eadjust  these  debts.  In  Mayor, 
etc.,  of  Baltimore  v.  State,  15  Md.  376,  the 
court  say:  "The  doctrine  that  there  is  a  fun- 
damental principle  of  right  and  justice  in- 
herent in  the  nature  and  spirit  of  the  social 
compact  that  rises  above  and  restrains  the 
power  of  legislation  cannot  be  applied  to  the 
legislature  when  exercising  its  sovereignty 
over  public  charters  granted  for  the  pur- 
pose of  government."  Says  Dill.  Mun.  Corp. 
(4th  Ed.)  §  ISO:  "But  upon  the  division  of 
the  old  corporation,  and  the  creation  of  a 
new  corporation  out  of  a  part  of  its  inhabit- 
ants and  territory,  or  upon  the  annexation 
of  part  of  another  corporation,  the  legisla- 
ture may  provide  for  an  equitable  appor- 
tionment or  division  of  the  property,  and  im- 


APPORTIONMENT  OF  PROPERTY  AND  DEBTS  IN  CASE  OF  DIVISION. 


39 


pose  upon  the  new  corporation,  or  upon  the 
people  and  territory  thus  disaunexod,  the  ob- 
ligation to  pay  an  equitable  proportion  of  the 
corporate  debts.  The  charters  and  constitu- 
ent acts  of  public  and  municipal  corporations 
are  not,  as  we  have  before  seen,  contracts; 
and  they  may  be  changed  at  the  pleasure  of 
the  legislature,  subject  only  to  the  restraints 
of  special  constitutional  provisions,  if  any 
there  be.  And  it  is  an  ordinary  exercise  of 
the  legislative  dominion  over  such  corpora- 
tions to  provide  for  their  enlargement  or  di- 
vision, and,  incidental  to  this,  to  apportion 
their  property,  and  direct  the  manner  in 
which  their  debts  or  liabilities  shall  be  met, 
and  by  whom.  The  opinion  has  been  ex- 
pressed that  the  partition  of  the  property 
nuist  be  made  at  the  time  of  the  division  of 
or  change  in  the  coi-poration.  since,  otherwise, 
the  old  corporation  becomes,  under  the  rule 
just  above  stated,  the  sole  owner  of  the  prop- 
erty, and  heuce  cannot  be  deprived  of  it  by 
a  subsequent  act  of  the  legislature.  But,  in 
the  absence  of  special  constitutional  limita- 
tions upon  the  legislature,  this  view  cannot, 
perhaps,  be  maintained,  as  it  is  inconsistent 
with  the  necessary  supremacy  of  the  legisla- 
ture over  all  its  corporate  and  uniucorporate 
bodies,  divisions  and  parts,  and  with  several 
well-considered  adjudications."  To  the  same 
general  effect  are  the  cases  of  Laramie  Co.  v. 
Albany  Co.,  92  U.  S.  307;  Mount  Pleasant  v. 
Beckwith.  100  U.  S.  514;  Scituate  v.  Wey- 
mouth, lOS  Mass.  128;  Willimantic  School 
Soc.  V.  School  Soc.  in  Windham,  14  Conn. 
457;  Town  of  Guilford  v.  Supervisors  of 
Chenango  Co.,  13  N.  Y.  143. 

In  this  state  the  power  of  the  legislature 
to  make  such  subsequent  adjustments  was 
early  declared  in  People  v.  Alameda  Co.,  20 
Cal.  041.  Alameda  county  was  created  out  of 
the  territory  of  Contra  Costa  county  in  l«o8. 
At  the  time  of  the  separation.  Contra  Costa 
county  owed  for  a  bridge  which  had  been 
constructed  upon  the  territory  set  apart  tor 
Alameda  county.  The  original  act  made  no 
provision  for  the  payment  of  this  indebted- 


ness, which  thus  remained  a  charge  agamsi 
tlie  old  county.  By  two  separate  later  acts, 
the  legislature  provided  for  the-  apportion- 
ment of  the  debt,  putting  a  part  of  the  bur- 
den upon  Alameda  county.  These  acts  were 
uplield  as  a  proper  exercise  of  legislative 
power.  And,  indeed,  it  is  not  easy  to  see 
how  the  opposite  view  can  be  maintained. 
Since  the  legislative  power,  within  consti- 
tutional limitations,  is  supreme  in  the  mat- 
ter, since,  in  the  tirst  apportionment,  the 
peijple  affected  are  entitled  to  no  voice  (ex- 
cept through  their  representatives),  and  since 
the  act  of  the  legislature  is  not  in  the  na- 
ture of  a  contract,  it  cannot  logically  be 
held  that  the  power  has  been  exhausted  by 
its  first  exercise.  The  right  still  remains 
to  make  such  future  adjustments  as  the  equi- 
ties maj'  suggest.  Nor,  in  the  opei-ation  of 
the  act  in  question  upon  the  city  of  San  Die- 
go, can  we  perceive  any  hardship.  It  had  at 
the  time  of  the  segregation  $000,000,  acquired 
while  Coronado  Beach  was  a  part  of  its  ter- 
ritory, and  partially  acquired,  doubtless,  by 
taxation  upon  this  land.  All  of  this  property 
it  retains.  All  of  the  moneys  evidenced  by 
the  bonded  indebtedness  were  expended  with- 
in its  present  territorial  limits,  and  no  dollar 
of  it  went  to  improve  the  excluded  territory. 
Having  all  of  the  common  pi-operty  and  all 
of  the  fruits  of  the  common  debt,  it  is  cer- 
tainly not  onerous  or  oppressive  that  it 
should  be  asked  to  pay  for  what  has  been 
expended  for  its  exclusive  benefit.  In  a  cer- 
tain sense,  it  is  true  that  Coronado  Beach 
was  also  benefited  by  these  expenditures.  In 
the  same  sense,  San  Mateo  county  is  bene- 
fited by  the  public  impi-ovements  of  the  city 
and  county  of  San  Francisco;  but  it  has  nev- 
er been  asserted  that  for  such  benefits  a  sis- 
ter county  should  be  called  upon  to  pay.  The 
judgment  and  order  appealed  from  are  af- 
fiiTued. 

We  concur:  BEATTY,  C.  J.;  HARRISON, 
J.;  TEMPLE,  J.;  VAN  FLEET,  J.;  GAK- 
OUTTE,  J. 


40 


APPORTIONMENT  OF  PROPERTY  AND  DEBTS  IN  CASE  OF  DIVISION. 


RUMSEY    V.    TOWN    OF    SAUK    CENTRE. 

(61  N.  W.  330,  59  Minn.  316.) 

Supreme  Court  of  Minnesota.     Dec.  7,  1894. 

Appeal  from  district  court,  Stearns  countj'; 
D.  B.  Searle,  Judge. 

Action  by  Charles  F.  Rumsey  against  the 
town  of  Sauk  Centre,  and  on  motion  of 
defendant  the  city  of  Sauk  Centre  was  made 
a  party  defendant.  From  an  order  overrul- 
ing a  demurrer  by  the  city  to  the  complaint, 
it  appeals.     Affirmed. 

M.  C.  Kelsey  and  Geo.  H.  Reynolds,  for  ap- 
l>ellant.  J.  L.  Washburn  and  L.  E.  Judson, 
Jr.,  for  respondent. 

MITCHELL,  J.  This  action  was  orig- 
inally brought  against  the  town  of  Sauk 
Centre  alone,  but  subsequently,  on  motion 
of  the  town,  neither  the  plaintiff  nor  the 
city  objecting,  the  city  of  Sauk  Centre  was 
made  a  party  defendant,  and  plaintiff 
amended  his  complaint  accordingly.  The 
defendant  city  demurred  to  the  complaint, 
on  the  ground  that  it  did  not  state  a  cause 
of  action.  From  an  order  overruling  this 
demurrer  the  citj-  appealed.  Stated  in  chron- 
ological order,  the  allegations  of  the  com- 
plaint are  as  follows:  The  town  of  Sauk 
Centre  was  a  duly-organized  township  in 
the  county  of  Stearns.  The  village  of  Sauk 
Centre,  situated  within  the  town,  was  or- 
ganized as  an  incorporated  village  under 
Gen.  Laws  1875.  c.  139,  and  Sp.  Laws  1876, 
c.  16,  and  so  continued  until  the  incorpora- 
tion of  the  city  of  Sauk  Centre,  in  1889.  In 
December,  1882,  the  town,  in  pursuance  of 
the  provisions  of  Sp.  Laws  1879,  c.  143,  is- 
sued to  the  Little  FaUs  &  Dakota  Railroad 
Company  its  bonds  to  the  amount  of  $12,000, 
which  were  afterwards  sold  and  transferred 
to  the  plaintiff,  and  upon  which  he  brings 
this  action. 

In  1885  the  legislature  passed  an  act  (Sp. 
Laws  1S85,  c.  296)  entitled  "An  act  to  provide 
for  the  payment  of  the  bonded  indebtedness 
of  the  town  of  Sauk  Centi-e  incurred  by 
said  town  by  the  issue  of  its  bonds  prior 
to  the  year  1883  and  to  apportion  said  in- 
debtedness between  the  present  town  of 
Sauk  Centre  and  the  village  of  Sauk  Centre." 
The  provisions  of  this  act  were  that  the 
bonded  indebtedness  of  the  town  incurred 
by  the  issue  of  its  bonds  prior  to  1883 
should  be  apportioned  and  made  chargeable 
to  and  payable  by  the  town  as  then  con- 
stituted, and  by  the  village  pro  rata  in  the 
proportion  that  the  valuation  of  taxable 
property  of  the  town  and  village,  respect- 
ively, shall  bear  to  the  entire  valuation  of 
the  taxable  property  of  the  town  and  village 
collectively,  said  valuation  to  be  determined 
by  the  general  tax  assessment  list  last  pre- 
ceding the  time  when  the  several  install- 
ments of  principal  and  interest  upon  such 
bonds  become  due  and  payable;    and  that 


the  payment  of  such  proportionate  shares 
thereby  apportioned  should  be  provided  foi", 
and  paid  by,  and  be  recoverable  against, 
the  town  and  village,  respectively,  as  they 
become  due,  in  the  same  manner  as  other 
debts  of  the  town  and  village,  respectively, 
were  by  law  provided  for,  made  payable  and 
recoverable.  In  March,  1SS9,  the  city  of 
Sauk  Centre  was  incorporated  by  Sp.  Laws, 
1889,  c.  4.  The  city  included  the  whole  of  the 
village,  and  880  acres  which  were  outside 
the  village,  but  within  the  town.  This  act 
provided  that  upon  the  election  and  qualifi- 
cation of  the  city  officers  in  April,  1889,  the 
village  corporation  should  cease,  and  there- 
upon the  city  should  succeed  to,  and  become 
vested  with  and  the  owner  of,  all  the  prop- 
erty and  rights  of  action  which  belonged  to 
the  village,  and  should  be  and  become  liable 
for  all  the  debts,  obligations,  and  liabilities 
then  existing  against  the  village  for  any 
cause  or  consideration  whatever,  in  the  same 
manner  and  to  the  same  extent  as  if  orig- 
inally contracted  or  incurred  by  the  city. 

1.  The  allegations  of  the  complaint  are  full 
to  the  effect  that  the  bonds  were  duly  issued 
by  the  town  by  virtue  of  and  in  accordance 
with  the  provisions  of  Sp.  Laws  1879,  c.  143. 
Whether,  in  case  these  allegations  are  un- 
true, the  recitals  in  the  bonds  are  sufficient 
to  estop  the  town  or  city  from  asserting  the 
fact  against  a  bona  fide  purchaser  for  value 
and  before  maturity,  is  a  question  not  here 
involved,  and  hence  need  not  be  considered. 

2.  An  examination  of  the  acts  under  which 
the  village  was  organized  will  show  that, 
according  to  the  repeated  decisions  of  this 
court  in  similar  cases,  it  remained  a  part 
of  the  town  for  all  purposes,  except  the  vil- 
lage purposes  provided  for  in  the  acts.  The 
property  within  the  village  was  subject  to 
taxation  for  the  payment  of  these  bonds  ia 
the  same  manner  and  to  the  same  extent 
as  any  other  property  in  the  town.  Bradish 
V.  Lucken,  38  Minn.  180,  36  N.  W.  454. 

3.  Inasmuch  as  this  condition  of  things 
stiU  continued,  it  is  not  apparent  what  was 
the  particular  necessity  for  the  enactment 
of  the  law  of  18S5.  But  the  meaning  and 
effect  of  that  act  are  quite  clear.  It  did 
not  and  could  not  aft'ect  or  change  the 
rights  of  the  holders  of  the  bonds  agaiust 
the  town.  But,  as  between  themselves,  it 
practically  made  the  village  and  the  remain- 
der of  the  town  two  separate  and  distinct 
districts  as  respects  liability  for  and  the 
payment  of  all  outstanding  bonds  of  the  vil- 
lage issued  prior  to  18S3,  and  apportioned 
this  indebtedness  between  the  two  in  the 
ratio  of  the  taxable  property  within  their 
respective  limits.  Under  this  act,  the  vil- 
lage would  be  liable  to  the  holders  of  the 
bonds  to  the  extent  of  the  amount  appor- 
tioned to  it;  and,  if  the  town  (outside  of  the 
village  limits)  was  compelled  to  pay  more 
thai!  its  share,  it  could  have  recovered  it 
back  from  the  village.     The  power   of  the 


APPORTIONMENT  OF  PROPERTY  AND  DEBTS  IN  CASE  OF  DIVISION. 


41 


legislature  to  do  this  is  undonbtod.  The 
v.iiaxc  was  a  part  of  tlu'  town  which  issued 
the  bonds.  All  the  property  withiu  its  lim- 
its was  liable  to  taxation  for  their  payment. 
The  part  apportioned  to  the  villajie  did  not 
impose  any  materially  si'eator  burden  of 
taxation  upon  the  property  within  its  limits 
than  it  was  already  subject  to.  The  right 
of  the  legislature,  in  all  cases  not  within  any 
constitutional  inhibition,  to  create,  alter,  di- 
vide, or  abolish  all  municipal  corporations, 
and  to  make  such  division  and  apportion- 
ment of  the  corporate  property  and  debts  of 
old  con)oratious,  in  case  of  a  division  of 
their  territory,  as  the  legislature  may  deem 
equitable,  is  well  settled.  State  v.  City  of 
Lake  City,  25  Minn.  404;  City  of  Winona  v. 
School  Dist.  No.  82,  40  Minn.  13,  41  N.  W.  530. 
And  it  can  make  no  difference  whether  the 
legislature  divides  the  old  corporation  only 
for  a  particular  purpose  or  for  all  purposes. 
The  intention  of  the  act  of  ISS.j  to  make 
the  village,  as  a  municipal  corporation,  liable 
for  the  designated  proportion  of  the  town 
bonds,  is  very  clear;  and,  as  we  consti-ue 
its  provisions,  there  is  no  ground  for  the 
contention  that  the  holders  of  the  bonds 
could  not  recover  against  the  village,   but 


that  it  would  only  be  liable  over  to  the 
town.  Tlie  fact  that  the  city  includes  SSO 
acres  more  than  the  village  neither  alters 
the  law  of  the  case,  nor  involves  any  prac- 
tical dlffieulty.  The  liability  of  the  village 
being  established,  the  liability  of  the  city, 
as  its  successor,  under  the  act  of  1SS9,  is 
too  clear  to  re(iuire  argument.  In  case  the 
plaintiff  establishes  his  cause  of  action,  lie 
will  be  entitled  to  judgment  against  the 
toAvn  by  virtue  of  its  contract  for  the  full 
amount  of  the  bonds,— and  against  the  city, 
by  virtue  of  the  acts  of  18S.5  and  1889,  to 
the  extent  of  its  proportionate  share,  as 
fixed  by  the  act  of  1885.  There  is  nothing 
in  the  point  that  the  act  of  1885  violated 
section  27,  art.  4,  of  the  constitution  of  the 
state.  Neither  is  there  anything  in  the  ob- 
jection that  it  is  a  legislative  exercise  of 
judicial  power.  It  does  not  assume  to  pass 
upon  the  validity  of  any  outstanding  bonds 
of  the  town.  If  there  are  any  such  which 
were  not  a  valid  indebtedness  of  the  town, 
that  defense  is  still  available  to  both  the 
town  and  the  city.     Order  alflrmed. 

GILFILLAN,  C.  J.,  absent  on  account  of 
sickness;   took  no  part. 


42 


APPORTIONMENT  OF  PROPERTY  AND  DEBTS  IN  CASE  OP  DIVISION. 


MT,  PLEASANT  v.  BECKWITH. 

(100  U.  S.  514.) 

Supreme  Ck)urt  of  United  States.     Oct.,   1879. 

Appeal  from  the  circuit  court  of  the  Unit- 
ed States  for  the  Eastern  district  of  Wiscon- 
sin. 

Mr.  L.  S.  Dixon  and  Mr.  John  T.  Fish,  for 
appellants,  Mr.  William  P.  Lynde,  for  ap- 
pellee. 

Mr.  Justice  CLIFFORD  delivered  the  opin- 
ion of  the  court. 

Explicit  authority  from  the  legislature 
was  given  to  the  supervisors  of  the  town  of 
Racine  to  subscribe  for  the  stock  of  the  rail- 
road company  mentioned  in  the  act  confer- 
ring the  power,  to  an  amount  not  exceeding 
$50,000,  provided  a  majority  of  the  legal 
voters  of  the  municipality,  at  a  meeting  of 
the  town  duly  called  and  held  for  the  pur- 
pose, shall  vote  in  favor  of  maliing  the  pro- 
posed subscription.  Sess.  Laws  Wis.  1853, 
p.  11. 

Pursuant  to  that  authority,  the  proper  offi- 
cers of  the  town,  on  the  6th  of  December, 
1853,  subscribed  for  the  capital  stocli  of  the 
railroad  company  to  the  amount  of  $50,000, 
and  issued  one  hundred  bonds  of  the  cor- 
poration, each  in  the  sum  of  $500,  in  pay- 
ment of  the  subscription  for  the  stock,  the 
bonds  being  made  payable  in  twenty  years 
from  date,  with  coupons  attached  for  annual 
interest  at  the  rate  of  seven  per  cent.  Twen- 
ty of  those  bonds  with  their  coupons  are 
now  held  by  the  complainant,  numbered 
from  seventy  to  eighty-nine,  inclusive,  and 
of  which  he  became  the  lawful  holder  with- 
in one  month  subsequent  to  their  date,— all 
of  which,  as  he  alleges,  remain  wholly  un- 
paid, principal  and  interest. 

Various  facts  and  circumstances  are  al- 
leged in  the  bill  of  complaint  of  an  equitable 
nature,  and  which  the  complainant  insists 
are  of  a  character  to  show  that  he  has  no 
remedy  at  law,  and  which  tend  strongly  to 
show  that  he  is  entitled  to  relief  in  equity. 
Appended  to  those  several  allegations  is  the 
prayer  of  the  complainant,  that  the  three  re- 
spondents may  answer  the  matters  charged, 
and  that  the  court  will  ascertain  the  respec- 
tive liabilities  of  the  respondents  to  the  com- 
plainant, and  decree  the  amount  due  to  him 
from  each  of  the  respondent  municipalities, 
and  for  general  relief. 

Service  was  made,  and  the  respective  re- 
spondents appeared  and  separately  demur- 
red to  the  bill  of  complaint.  Hearing  was 
had,  and  the  court  overruled  the  several  de- 
murrers and  directed  that  the  respondents 
should  answer  the  matters  charged  in  the 
bill  of  complaint  by  a  given  day.  Separate 
answers  were  accordingly  filed  by  the  re- 
spective respondents,  no  objection  being 
made  that  they  were  not  filed  in  time. 

Sufhcient  appears  to  show  that  on  the  2d 
of  January,  1838,  the  town  of  Racine  and  the 


town  of  Mt.  Pleasant  were  by  the  same  act 
created  municipal  corporations,  with  bound- 
aries as  set  forth  in  the  bill  of  complaint. 
Laws  Wis.  1838,  p.  168. 

Four  years  later,  the  town  of  Caledonia 
was  incorporated,  her  territory  being  taken 
from  the  two  towns  before  mentioned,  with- 
out any  provision  being  made  that  the  new 
town  should  bear  any  portion  of  the  indebt- 
edness of  either  of  the  old  towns.  Priv. 
Laws  1842,  p.  10. 

Both  parties  concur  in  these  propositions, 
and  it  appears  that  the  city  of  Racine,  which 
is  a  distinct  municipality  from  the  town  by 
the  same  name,  was  incorporated  by  the 
act  of  the  8th  of  August,  1848,  with  bound- 
aries as  correctly  set  forth  in  the  transcript. 
Id.  1848,  p.  80. 

Subsequent  changes,  if  any,  made  in  the 
boundaries  o^  these  municipalities,  not  here- 
in made  the  subject  of  comment,  are  re- 
garded as  immaterial  in  the  present  investi- 
gation. 

Additional  territory  was  subsequently  tak- 
en from  the  town  of  Racine  and  was  annex- 
ed to  the  city  of  Racine,  and  by  a  still  later 
act  another  fraction  of  her  territory  was  an- 
nexed to  the  town  of  Mt.  Pleasant,  neither 
act  containing  any  regulations  as  to  existing 
indebtedness.      Id.  1856,  pp.  148-416. 

Prior  to  that,  to  wit,  on  the  6th  of  March 
in  the  same  year,  the  legislature  of  the  state, 
by  an  act  of  that  date,  annexed  a  much  lar- 
ger tract,  taken  from  the  towns  of  Racine 
and  Mt.  Pleasant,  to  the  city  of  Racine,  as 
described  in  the  record;  but  the  supreme 
court  of  the  state  decided  that  a  certain  fea- 
ture of  the  act  was  unconstitutional  and 
void.  Slauson  v.  City  of  Racine,  13  Wis. 
398. 

In  consequence  of  that  decision,  the  towns 
from  which  the  territory  annexed  was  taken 
continued  to  exercise  jurisdiction  over  it  for 
the  period  of  fifteen  years  longer,  until  a 
portion  of  the  same  territory  then  constitut- 
ing a  part  of  the  town  of  Mt.  Pleasant  was 
again  annexed  to  the  city  of  Racine,  on  the 
condition  that  the  city  "shall  assume  and 
pay  so  much  of  the  municipal  indebtedness 
of  the  town  as  the  lands  described  in  the 
first  section  of  that  act  may  be  or  become 
legally  chargeable  with  and  liable  to  pay." 
Priv.  Laws  Wis.  1871,  p.  723. 

Throughout  these  several  changes,  except 
the  last,  the  annexation  in  every  instance 
was  made  without  any  regulation  that  the 
town  to  which  the  territory  was  annexed 
should  pay  any  portion  of  the  indebtedness 
of  the  town  from  which  the  territory  annex- 
ed was  taken.  Still  not  satisfied,  the  legis- 
lature, by  the  act  of  the  23d  of  February, 
1857,  rearranged  the  boundaries  of  each  of 
the  three  towns,  as  therein  is  fully  set  forth 
and  described.     Id.  1857,  p.  103. 

Two  years  later,  the  county  supervisors 
changed  the  name  cf  the  town  of  Racine  to 
Orwell;  but  the  prior  name  will  be  used 
throughout  in  this  opinion,  as  less  likely  to 


API'ORTIOX.MENT  OF  PROPERTY  AND  DEBTS  IN  CASE  OF  DIVISION. 


43 


produce  confusion  in  the  statement  of  facts. 
From  the  time  the  legislature  rearranged  the 
l)Oundaries  of  the  three  towns  they  remained 
without  alteration  until  the  legislature, 
March  30,  ISGU,  by  a  public  act,  vacated  and 
extinguished  the  corporation  and  body  politic 
known  as  the  town  of  Racine,  then  called 
Orwell,  and  enacted  that  thereafter  it  should 
have  no  existence  as  a  body  politic  and  cor- 
porate.     Sess.  Laws  Wis.  18G0,  p.  21S. 

Section  2  of  the  act  also  provided  that 
all  that  part  of  the  territory  of  the  town  ly- 
ing north  of  the  described  line  should  be  an- 
nexed to  and  hereafter  form  a  part  of  the 
town  of  Caledonia,  and  that  all  that  part 
of  the  territory  lying  south  of  that  line 
should  become  and  continue  to  be  a  part  of 
Mt.  I'leasant. 

Each  of  the  respondent  towns  refers  in  their 
answer  to  the  legislation  of  the  state  in  re- 
spect to  their  incorporation  and  boundaries, 
which  need  not  be  reproduced,  as  they  are 
accurately  set  forth  in  the  preceding  state- 
ment. 

Two  of  the  respondents,  to  wit,  the  town 
of  Mt.  Pleasant  and  the  town  of  Caledonia, 
deny  in  their  answers  that  any  statute  of 
the  state  has  ever  been  passed  which  would 
authorize  the  municipal  authorities  of  those 
towns  to  levy  and  collect  a  tax  to  pay  either 
the  principal  or  interest  of  the  bonds  de- 
scribed in  the  bill  of  complaint,  and  allege 
that  the  corporate  authorities  of  those  towns 
have  never  assumed  or  undertaken  any  trust 
or  duty  in  the  premises,  or  have  ever,  in  any 
way,  recognized  the  acts  of  the  town  which 
issued  the  bonds  or  the  validity  of  the  same. 
Nor  does  the  answer  of  the  other  resi)ond<^nt, 
to  wit,  the  city  of  Racine,  differ  very  mate- 
rially from  those  tiled  by  the  two  tov.us  rirst 
named,  except  that  the  pleader  avers  that 
the  city  was  only  made  liable  for  such  por- 
tion of  the  indebtedness  of  the  old  town  as 
is  described  in  the  act  enlarging  the  limits 
of  the  respondent  city,  and  pleads  as  a  sepa- 
rate defence  that  the  complainant  has  an 
adequate  remedj'  at  law. 

Replications  were  tiled  by  the  complainant, 
and  the  parties  entered  into  a  stipulation 
that  the  proofs  should  be  taken  by  the  mas- 
ter, and  that  thej'  might  be  read  and  used 
at  the  final  hearing  as  the  evidence  in  the 
case,  subject  to  legal  objection.  Proofs  were 
accordingly  taken  by  the  master,  and  he  re- 
ported the  depositions  of  the  witnesses  ex- 
amined, with  an  agreed  statement  of  facts. 
Arguments  of  counsel  followed,  and  the  cir- 
cuit court  entered  a  decree  in  favor  of  the 
complainant  against  each  respondent. 

Two  of  the  towns,  to  wit,  Mt.  Pleasant  and 
Caledonia,  appealed  to  this  court,  and  assign 
for  error  the  following  causes:  (1)  That  the 
circuit  court  erred  in  holding  that  the  appel- 
lants are  liable  to  pay  the  debt  of -the  town 
of  Racine  incurred  in  the  purchase  of  stock 
in  the  aforesaid  railroad  company,  or  that 
the  debt  of  that  town  became  the  debt  of  the 
appellants,  to  be  enforced  against  them  in 


any  form  of  proceeding.  (2)  That  the  cir 
cuit  court  erred  in  holding  that  the  property 
of  the  individuals  within  the  jurisdiction  of 
that  town  constituted  the  primary  fund  to 
which  the  complainant  had  the  right  to  look 
for  the  payment  of  his  debt,  and  that  the 
transfer  of  their  property  to  the  jurisdiction 
of  the  appellants  rendered  them  liable  to  pay 
the  debts  due  to  the  creditors  of  the  town 
whose  powers  and  jurisdiction  terminated  by 
the  transfer.  (3)  That  the  circuit  court 
erred  in  holding  that  the  power  of  taxation 
previously  vested  in  the  town  which  issued 
the  bonds  in  question  was,  by  the  act  annex- 
ing its  territory  to  the  appellant  towns, 
transferred  to  the  appellants  to  be  severally 
exercised  by  them  upon  all  the  taxable  prop- 
erty within  their  respective  jurisdictions.  (4) 
That  the  circuit  court  erred  in  holding  that  it 
had  jurisdiction  in  equity  of  the  case,  or 
that  the  appellants  are  in  equity  and  good 
conscience  liable  to  pay  the  claim  of  the 
complainant  against  the  town  whose  territo- 
ry was  annexed  to  the  appellant  corpora- 
tions. 

Counties,  cities,  and  towns  are  municipal  / 
corporations  created  by  the  authority  of  the  f 
legislature,  and  they  derive  all  their  powers ' 
from   the   source   of   their   creation,   except   / 
where  the  constitution  of  the  state  otherwise  / 
provides.      They  have  no  inherent  jurisdic-  I 
tion  to  make  laws  or  to  adopt  governmental 
regidations,  nor  can  they  exercise  any  other  I 
powers  in  that  regard  than  such  as  are  ex-  ' 
pressly  or  impliedly  derived  from  their  char- 
ters or  other  statutes  of  the  state. 

Corporations  of  the  kind  are  composed  of 
all  the  inhabitants  of  the  territory  included 
within  the  political  organization,  each  indi- 
vidual being  entitled  to  participate  in  its 
proceedings;  but  the  powers  of  the  organiza- 
tion may  be  modified  or  taken  away  at  the 
mere  will  of  the  legislature,  according  to  its 
own  views  of  public  convenience,  and  with- 
out any  necessity  for  the  consent  of  those 
composing  the  body  politic.  Corporate 
rights  and  privileges  are  usually  possessed 
by  such  municijialities;  and  it  is  equally  true 
that  they  are  subject  to  certain  legal  obli- 
gations and  duties,  which  may  be  increased 
or  diminished  at  the  pleasure  of  the  legis- 
lature, from  which  all  their  powers  are  de- 
rived. 

Institutions    of    the    kind,    whether    called   I 
cities,  towns,  or  counties,  are  the  auxiliaries 
of  the  state  in   the  important   business   of 
municipal   rule;    but  they  cannot  have  the 
least  pretension  to  sustain  their  privileges    / 
or  their  existence  upon  any  thing  like  a  con-    I 
tract   between   themselves  and  the   legisla- 
ture of  the  state,  because  there  is  not  and 
cannot  be  any  reciprocity  of  stipulation  be-     , 
tween  the  parties,  and  for  the  further  rea- 
son that  their  objects  and  duties  are  utterly 
incompatible  with  every  thing  partaking  of 
the  nature  of  compact. 

Instead  of  that,  the   constant   practice  is   I 
to   divide    large   municipalities   and   to   con- 


44 


APPORTIONMENT  OF  PROPERTY  AND  DEBTS  IN  CASE  OF  DIVISION. 


solidate  small  ones,  or  set  off  portions  of 
territory  from  one  and  annex  it  to  another, 
to  meet  the  wishes  of  the  residents  or  to  pro- 
mote the  public  interests  as  understood  by 
the  legislature,— it  being  everywhere  under- 
stood that  the  legislature  possesses  the  pow- 
er to  make  such  alterations  and  to  apportion 
the  common  property  and  burdens  as  to 
them  may  seem  just  and  equitable. 

Alterations  of  the  kind  are  often  required 
to  promote  the  public  interests  or  the  con- 
venience and  necessities  of  the  inhabitants; 
and  the  public  history  shows  that  it  has  been 
the  constant  usage  in  the  states  to  enlarge 
or  diminish  the  power  of  towns,  to  divide 
their  territory  by  set-off  and  annexation,  and 
to  make  new  towns  whenever  the  legisla- 
ture deems  it  just  and  proper  that  such  a 
change  should  be  made.  Old  towns  may  be 
divided  and  new  ones  incorporated  out  of 
parts  of  the  territory  of  those  previously  or- 
ganized; and  in  enacting  such  regulations 
the  legislature  may  apportion  the  common 
property  and  the  common  burdens,  and  may, 
as  between  the  parties  in  interest,  settle  all 
the  terms  and  conditions  of  the  division  of 
their  territory,  or  the  alteration  of  the  bound- 
aries, as  fixed  by  any  prior  law. 

State  legislation  may  regulate  the  subject; 
but  if  the  legislature  omits  to  do  so,  the  pre- 
sumption, as  between  the  parties,  is  that 
they  did  not  consider  that  any  regulation 
was  necessary.  Where  none  is  made,  in 
case  of  division  the  old  corporation  owns  all 
the  public  property  within  her  new  limits, 
and  is  responsible  for  all  the  debts  of  the 
corporation  contracted  before  the  act  of  sep- 
aration was  passed.  Debts  previously  con- 
tracted must  be  paid  entirely  by  the  old 
corporation,  nor  has  the  new  municipality 
any  claim  to  any  portion  of  the  public  prop- 
erty, except  what  falls  within  her  bound- 
aries, and  to  that  the  old  corporation  has  no 
claim  whatever.  Laramie  Co.  v.  Albany  Co., 
92  U.  S.  307;  Bristol  v.  New  Chester,  3  N.  H. 
521. 

Apply  these  principles  to  the  admitted 
facts  of  the  case,  and  it  is  clear  that  every 
one  of  the  described  changes  made  in  the 
limits  and  boundaries  of  the  respondent  mu- 
nicipalities become  wholly  immaterial  in  this 
investigation,  except  the  last  two,  as  hereaft- 
er more  fully  explained. 

Before  the  passage  of  those  two  acts,  the 
claim  of  the  complainant  against  the  town 
of  Racine  was,  beyond  all  question,  valid 
and  collectible.  Nobody  controverts  that 
proposition,  and  it  is  clear  that  no  defence 
to  the  action  could  have  been  sustained  for 
a  moment.  By  the  act  of  March  30,  ISCX), 
the  legislature  of  the  state  vacated  and  ex- 
tinguished the  corporation  and  body  politic 
formerly  known  as  Racine,  then  called  Or- 
well, and  annexed  the  whole  area  of  the  terri- 
tory included  in  the  mimicipality  *o  the  two 
adjacent  towns  of  Mt.  Pleasant  and  Caledo- 
nia, in  the  proportions  and  by  the  boundary 
lines  described  in  the  second  section  of  the 


legislative  act.  Had  legislation  stopped 
there,  it  is  clear  that  the  city  of  Racine 
would  not  have  been  liable  for  any  portion 
of  the  debt  of  the  extinguished  municipal 
corporation;  but  it  did  not  stop  there,  as 
appears  by  what  follows. 

Prior  to  the  passage  of  that  act,  the  old 
town  of  Racine  was  the  sole  obligor  in  the 
bonds  held  by  the  complainant;  and  there 
certainly  is  nothing  in  the  provisions  of 
that  act  which  tends  in  the  least  degree  to 
create  any  liability  on  the  part  of  any  other 
municipality  for  the  indebtedness  of  that 
town,  except  the  towns  of  Mt.  Pleasant  and 
Caledonia.  Nothing  had  previously  occur- 
red to  create  any  liability  on  the  part  of 
the  city  of  Racine  to  pay  any  proportion  of 
the  debts  of  the  old  town  of  Racine,  which 
issued  the  bonds  described  in  the  bill  of  com- 
plaint. 

Until  the  passage  of  the  act  of  the  17th 
of  March,  1871,  the  rights  of  all  parties  re- 
mained unchanged.  By  that  act  a  portion 
of  the  territory  formerly  belonging  to  the 
old  town  of  Racine  was  set  off  from  the  town 
of  Mt.  Pleasant  and  was  annexed  to  the  city 
of  Racine.  Appended  to  that  act,  and  a  part 
of  it,  was  the  provision  that  the  city  to 
which  the  described  territory  was  annexed 
"shall  assume  and  pay  so  much  of  the  in- 
debtedness of  the  town  of  Racine  as  the 
lands  described  in  the  first  section  of  the  act 
may  be  or  become  legally  chargeable  with 
and  liable  to  pay."  Priv.  Laws  Wis.  1871, 
p.  723. 

Enough  appears  in  that  provision  of  direct 
legislation  to  show  that  the  city  of  Racine 
wa^  thereby  made  liable  for  the  debts  of  the 
extinguished  town  of  Racine  in  the  propor- 
tion therein  described;  and  the  clear  infer- 
ence from  the  provision  is  that  the  town  of 
Mt.  Pleasant,  prior  to  the  passage  of  that 
act,  was  liable  for  the  debts  of  that  old 
municipality  in  proportion  to  the  whole  ex- 
tent of  the  territory  annexed  to  her  by  the 
prior  act  which  extinguished  the  old  munici- 
pal corporation.  None,  it  is  presumed,  will 
deny  the  liability  of  the  city  of  Racine  for 
those  debts  in  the  proportion  described  in 
the  act  creating  the  liability,  and  hence  it  is 
that  the  corporate  authorities  of  the  city  ac- 
quiesced in  the  decree  of  the  circuit  court 
without  appeal. 

Parties  who  do  not  appeal  from  the  final 
decree  of  the  circuit  court  cannot  be  heard 
in  opposition  to  the  same  when  the  case  is 
regularly  brought  here  by  other  proper  par- 
ties. They  may  be  heard  ip  support  of  the 
decree  and  in  opposition  to  every  assignment 
of  error,  but  they  cannot  be  heard  to  show 
that  the  decree  below  was  erroneous.  The 
Stephen  Morgan,  94  U.  S.  599. 

Concede  that,  and  it  follows  that  the  only 
question  open  in  the  case  for  examination 
is  whether  the  other  two  respondent  munici- 
pal corporations  are  liable  to  any  extent  for 
the  debts  of  the  extinguished  municipality, 
portions  of  whose  territory  were  transferred 


APPORTIONMENT  OF  PROPERTY  AND  DEBTS  IN  CASE  OF  DIVISION. 


45 


by  the  legislature  into  their  respective  ju- 
risdictious.  ^Ve  say,  liable  to  auy  extent, 
because  the  question  of  amount  was  submit- 
ted to  the  master,  and  the  record  shows  that 
neither  of  the  apjiellants  excepted  to  the 
master's  report.  Gordon  v.  Lewis,  2  Sumn. 
143,  Fed.  Cas.  No.  5,013;  McMiclcen  v.  Perin, 
IS  How.  5U7.  Nor  do  either  of  the  assign- 
ments of  error  allege  that  the  master  com- 
mitted any  error  in  that  regard.  Brocliett 
V.  Broclvett,  3  How.  001. 

Viewed  in  that  light,  as  the  case  should 
be,  it  is  clear  that  if  the  appellants  are  liable 
at  all  they  are  liable  for  the  respective 
amounts  specihed  in  the  decree.  Harding 
V.  Handy,  11  Wheat.  103;  Story  v.  Living- 
ston, 13  Pet.  359. 

Where  one  town  is  by  a  legislative  act 
merged  in  two  others,  it  would  doubtless  be 
competent  for  the  legislature  to  regulate  the 
rights,  duties,  and  obligations  of  the  two 
towns  whose  limits  are  thus  enlarged;  but 
if  that  is  not  done,  that  it  must  follow  that 
the  two  towns  succeed  to  all  the  public  prop- 
erty and  immunities  of  the  extinguished  mu- 
nicipality. Morgan  v.  City  and  Town  of  Be- 
loit,  7  Wall.  G13,  617. 

It  is  not  the  case  where  the  legislature  cre- 
ates a  new  town  out  of  a  part  of  the  terri- 
tory of  an  old  one,  without  making  provision 
for  the  payment  of  the  debts  antecedently 
contracted,  as  in  that  case  it  is  settled  law 
that  the  old  corporation  retains  all  the  pub- 
lic property  not  included  within  the  limits 
of  the  new  municipality,  and  Is  liable  for 
all  the  debts  contracted  by  her  before  the 
act  of  separation  was  passed.  Town  of  De- 
pere  v.  Town  of  Bellevue,  31  Wis.  120,  125. 

Instead  of  that,  it  is  the  case  where  the 
chai'ter  of  one  corporation  is  vacated  and 
rendered  null,  the  Avhole  of  its  territory  be- 
ing annexed  to  two  others.  In  such  a  case, 
if  no  legislative  arrangements  are  made,  the 
effect  of  the  annulment  and  annexation  will 
be  that  the  two  enlarged  corporations  will 
be  entitled  to  all  the  public  property  and  im- 
munities of  the  one  that  ceases  to  exist,  and 
that  they  will  become  liable  for  all  the  legal 
debts  contracted  by  her  prior  to  the  time 
when  the  annexation  is  carried  into  opera- 
tion. 

Speaking  to  the  same  point,  the  supreme  1 
court  of  Missouri  heid  that  where  one  cor- 
poration goes  entirely  out  of  existence  by  be- 
ing annexed  to  or  merged  in  another,  if  no 
arrangements  are  made  respecting  the  prop- 
erty and  liabilities  of  the  corporation  that 
ceases  to  exist,  the  subsisting  corporation 
will  be  entitled  to  all  the  property  and  be  an- 
swerable for  all  the  liabilities.  Thompson 
V.  Abbott,  61  Mo.  176.  177. 

Grant  that,  and  it  follows  that  when  the 
corporation  firsrt  named  ceases  to  exist  there 
is  then  no  power  left  to  control  in  its  be-  I 
half  any  of  its  funds,  or  to  pay  off  any  of  I 
its  indebtedness.      Its  property  iiasses  into  | 
the  hands   of   its   successor,    and   Avhen   the 
benefits  are  taken  the  burdens  are  assumed,  I 


the  rule  being  that  the  successor  who  takes 
the  benefits  must  take  the  same  cum  onere, 
and  that  the  successor  town  is  thereby  estop- 
ped to  deny  that  she  is  liable  to  respond 
for  the  attendant  burdens.  Swain  v.  Sea- 
mens,  9  Wall.  254,  274;  Pickard  v.  Sears,  6 
Adol.  &  E.  474. 

Powere  of  a  defined  character  are  usually 
granted  to  a  municipal  corporation,  but  that 
does  not  prevent  the  legislature  from  exer- 
cising unlimited  control  over  their  chartei-s. 
It  still  has  authority  to  amend  their  charters, 
enlarge  or  diminish  their  powers,  extend  or 
limit  their  boundaries,  consolidate  two  or  more 
into  one,  overrule  their  legislative  action  when- 
ever it  is  deemed  unwise,  impolitic,  or  unjust, 
and  even  abolish  them  altogether,  in  the  legis- 
lative discretion,  and  substitute  in  their  place 
those  which  are  different.  Cooley,  Const.  Lim. 
(4th  Ed.)  232. 

Municipal  corporations,  says  Mr.  Justice 
Field,  so  far  as  they  are  invested  with  subordi- 
nate legislative  powers  for  local  purposes,  are 
mere  instrumentalities  of  the  state  for  the  con- 
venient administration  of  their  affairs;  but 
when  authorized  to  take  stock  in  a  railroad 
company,  and  issue  their  obligations  in  pay- 
ment of  the  stock,  they  are  to  that  extent  to 
be  deemed  private  corporations,  and  their  obli- 
gations are  secured  by  all  the  guaranties  which 
protect  the  engagements  of  private  individuals. 
Broughton  v.  Pensacola,  93  U.  S.  266,  269. 

Modifications  of  their  boundaries  may  be 
made,  or  their  names  may  be  changed,  or  one 
n;ay  be  merged  in  another,  or  they  may  be  divid- 
ed and  the  moieties  of  their  territory  may  be  an- 
nexed to  others;  but  in  all  these  cases,  if  the 
extinguished  municipality  owes  outstanding 
debts,  it  wiU  be  presumed  in  every  such  case 
that  the  legislature  intended  that  the  liabilities 
as  well  as  the  rights  of  property  of  tlie  coniora- 
tion  which  thereby  ceases  to  exist  shall  accxjm- 
pany  the  teiTitory  and  property  into  the  juris- 
diction to  which  the  teiTitory  is  annexed. 
Colcliester  v.  Seaber,  3  Burrows,  1866. 

Neither  argument  nor  authority  is  necessary 
to  prove  that  a  state  legislature  cannot  pass  i 
a  valid  law  impairing  the  obligations  of  a  con- 1 
tract,  as  that  general  proposition  is  universally' 
admitted.  Contracts  under  the  constitution  are 
as  sacred  as  the  constitution  that  protects  them 
from  infraction,  and  yet  the  defence  in  this 
ca.se.  if  sustained,  will  establish  tlie  proposi- 
tion that  the  effect  of  state  legislation  may  be 
such  as  to  deprive  a  party  of  all  means  of  sus- 
taining an  action  of  any  kind  for  their  enforce- 
m(  nt.  Cases,  doubtless,  ma}'  arise  when  the 
party  cannot  collect  what  is  due  under  the 
contract;  but  he  ought  always  to  be  able  by 
some  proper  action  to  reduce  his  contract  to 
judgment. 

Suppose  it  be  admitted  that  the  act  of  the 
stiite  legislature  annulling  the  charter  of  the 
municipality  indelited  to  the  complainant,  with- 
out making  any  provision  for  the  payment  of 
outstanding  indebtedness,  was  unconstitutional 
and  void,  still  it  must  be  admitted  that  the 
very  act  which  annulled  that  charter  annexed 


46 


APPORTIONMENT  OF  PROPERTY  AND  DEBTS  IN  CASE  OF  DIVISION. 


all  the  territory  and  property  of  the  municipal- 
ity to  the  two  appellant  towns,  and  that  they 
acquired  with  that  the  same  power  of  taxation 
over  the  residents  and  their  estates  that  they 
previously  possessed  over  the  estates  of  the  in- 
habitants resident  within  their  limits  before 
their  boundaries  were  enlarged. 

Extinguished  municipal  corporations  neither 
own  propei-ty,  nor  have  they  any  power  to  levy 
taxes  to  pay  debts.  Whatever  power  the  ex- 
tinguished municipahty  had  to  levy  taxes 
■when  the  act  passed  annulling  her  charter 
terminated,  and  from  the  moment  the  annexa- 
tion of  her  territory  was  made  to  the  appel- 
lant towns,  the  power  to  tax  the  property 
transferred,  and  the  inhabitants  residing  on  it, 
became  vested  in  the  proper  authorities  of  the 
towns  to  which  the  territory  and  jurisdiction 
were  by  that  act  transferred;  from  which  it 
follows  that  for  all  practical  pui-poses  the  com- 
plainant was  left  without  judicial  remedy  to 
enforce  the  collection  of  the  bonds  or  to  recover 
judgment  for  the  amounts  they  represent. 

When  the  appellant  to-wns  accepted  the  an- 
nexation, their  authorities  Ijnew,  or  ought  to 
have  known,  that  the  extinguished  municipal- 
ity owed  debts,  and  that  the  act  effecting  the 
annexation  made  no  provision  for  their  pay- 
ment. They  had  no  right  to  assume  that  the 
annulment  of  the  charter  of  the  old  town 
would  have  the  effect  to  discharge  its  indebt- 
edness, or  to  impair  the  obligation  of  the  con- 
tract held  by  its  creditors  to  enforce  tlie  same 
against  those  holding  the  territory  and  juils- 
diction  by  the  authority  from  the  legislature 
and  the  public  property  and  the  power  of  tax- 
ation previously  held  and  enjoyed  by  the  extin- 
guished municipality. 

'  Express  provision  was  made  by  the  act  an- 
nulling the  charter  of  the  debtor  municipality 
for  annexing  its  territory  to  the  appellant 
towns;  and,  when  the  annexation  became  com- 
plete, the  power  of  taxation  previously  vested 
in  the  inhabitants  of  the  annexed  territory  as 
a  sei>arate  municipality  ceased  to  exist,  wheth- 
er to  pay  debts  or  for  any  other  purpose.— 
the  reason  being  that  the  power,  so  far  as  re- 
spected its  future  exercise,  was  transferred 
with  the  territory  and  the  jurisdiction  over  its 
inhal)itants  to  the  appellant  towns,  as  enlarged 
by  the  annexed  territory;  from  wliich  it  fol- 
lows, unless  it  be  held  that  the  extinguishment 
of  the  debtor  municipality  discharged  its  debts 
•without  payment,  which  the  constitution  for- 
bids, that  tlie  appellant  towns  assumed  each  a 
proportionate  share  of  the  outstanding  obliga- 
tions of  the  debtor  town  when  they  acquired 
the  territory,  public  property,  and  municipal 
jurisdiction  over  every  thing  belonging  to  the 
extinguislied  municipality. 

Corporations  of  a  municipal  character,  such 
as  towns,  are  usually  organizf^l  in  tliis  coun- 
try by  special  acts  or  piu-suant  to  some  general 
state  law;  and  it  is  clear  that  their  powers 
and  duties  differ  in  some  important  particu- 
lai-s  from  the  towns  which  existed  in  the  par- 
ent country  before  the  Revolution,  where  they 
were    created    by    special    charters    from    tlie 


crown,  and  acquired  many  of  their  privileges 
by  prescription,  without  any  aid  from  pailia- 
ment  Coi-porate  franchises  of  the  kind  grant- 
ed during  that  period  partook  much  more 
largely  of  the  nature  of  private  coi-porations 
than  do  tiie  municipalities  created  in  this  coun- 
tiy,  and  known  as  towns,  cities,  and  counties. 
Power  exists  here  in  the  legislature,  not  only 
to  fix  the  boundaries  of  such  a  municipality 
when  inconwrated,  but  to  enlarge  or  diminish 
the  same  subsequently,  without  the  consent  of 
the  residents,  by  annexation  or  set-off,  unless 
restrained  by  the  oonstitution,  even  against  the 
remonstrance  of  every  property  holder  and 
voter  within  the  limits  of  the  original  munici- 
pality. 

Property  set  off  or  annexed  may  be  benefit- 
ed or  burdened  by  the  change,  and  the  liability 
of  the  residents  to  taxation  may  be  increased 
or  diminished;  but  the  question,  in  every  case, 
is  entirely  within  the  control  of  the  legislature, 
and,  if  no  provision  is  made,  every  one  must 
submit  to  the  will  of  the  state,  as  expressed 
tbrough  the  legislative  depai'tment.  Inconven- 
ience will  be  suffered  by  some,  while  others 
will  be  greatly  benefited  in  that  regard  by  the 
change.  Nor  is  it  any  objection  to  the  exer- 
cise of  the  power  that  the  property  annexed 
or  set  off  will  be  subjected  to  increased  taxa- 
tion, or  that  the  town  from  which  it  is  taken 
or  to  which  it  is  annexed  will  be  benefited 
or  prejudiced,  unless  the  constitution  prohibits 
the  change,  since  it  is  a  matter,  in  the  absence 
of  constitutional  restriction,  which  belongs 
wholly  to  the  legislature  to  detennine.  Courts 
everywhere  in  this  country  hold  that,  in  the 
division  of  towns,  the  legislature  may  appor- 
tion the  burdens  betu'een  the  two,  and  may 
determine  the  proportion  to  be  borne  by  each. 
Sill  V.  Village  of  Corning.  15  N.  Y.  297;  May- 
or, etc.,  of  City  of  Baltimore  v.  State,  15  Md. 
376;  City  of  Olney  v.  Harvey.  50  111.  453; 
Borough  of  Dunsmore's  Appeal,  52  Pa.  St.  374. 

Public  property  and  the  subordinate  rights  of 
a  municipal  corporation  are  within  the  control 
of  the  legislature;  and  it  is  held  to  be  settled 
law  that,  where  two  separate  towns  are  cre- 
ated out  of  one,  each,  in  the  absence  of  any 
statutory  regulation,  is  entitled  to  hold  in  sev- 
eralty the  public  property  of  the  old  corpora- 
tion which  falls  within  its  limits.  North 
Hempsted  v.  Hempsted,  2  Wend.  109;  Hart- 
ford Bridge  Co.  v.  East.Hartford,  16  Conn.  149, 
171. 

Extensive  powers  in  that  regard  are  doubt- 
less possessed  by  tlie  legislature;  but  the  con- 
stitution provides  that  no  state  shall  pass  any 
"law  impairing  the  obligation  of  contracts," 
from  which  it  follows  that  the  legislature,  in 
the  exercise  of  any  such  power,  cannot  pass 
any  valid  law  imjiniriug  the  right  of  existing 
creditoi's  of  the  old  municipality.  1  Dill.  Mun. 
Corp.  (2d  Fxl.)  §  41;  Van  Hoffman  v.  City  of 
Quincy,  4  Wall.  535.  554;  Lee  County  v.  Rog- 
ers, 7  Wall.  181,  184;  Butz  v.  City  of  Musca- 
tine, 8  Wall.  575,  583;  Furman  v.  Xichol.  Id. 
44,  62. 

Where  a  municipal  corporation  has  tlie  power 


APPORTION^IENT  OF  PROPERTY  AND  DEBTS  IN  CASE  OF  DIVISION. 


47 


to  contract  a  debt,  it  has.  says  Dixon,  C.  J., 
by  necessaiy  implication,  autliority  to  resort  to 
the  usual  mode  of  raisiuj;  money  to  pay  it, 
which  undoubtedly  is  taxation.  State  v.  City 
of  Milwaukee,  25  Wis.  122,  133. 

Whenever  the  charter  of  a  city,  at  the  time 
of  the  issue  of  bonds,  made  it  the  duty  of  the 
city  autliorities  to  levy  and  collect  the  amount, 
when  reduced  to  judgment,  like  other  city 
charges,  the  same  court  held  that  a  subse- 
quent act  of  the  legislature  prohibiting  the  city 
from  levying  such  a  tax  would  be  repugnant 
to  the  constitution.  Soutter  v.  City  of  Madi- 
son. 15  ^^■is.  30. 

State  control  over  the  division  of  the  terri- 
tory of  the  state  into  cities,  towns,  and  dis- 
tricts, unless  restricted  by  some  constitutional 
limitation,  is  supreme,  but  the  same  court  ad- 
mits that  it  cannot  be  exercised  to  annul  an- 
other regulation  of  the  constitution.  Chandler 
V.  Boston.  112  Mass.  200;  Opinion  of  the  Jus- 
tices, 6  Cush.  580. 

Cities  or  towns,  whenever  they  engage  in 
transactions  not  public  in  their  natiu-e,  act  un- 
der the  same  pecuniary  responsibility  as  indi- 
viduals, and  are  as  much  bound  by  their  en- 
gagements as  ai-e  private  persons,  nor  is  it  in 
the  power  of  the  legislature  to  authorize  them 
to  violate  their  contracts.  Western  Sav.  Fund 
Soc.  V.  City  of  Philadelphia,  31  Pa.  SL  175, 
185. 

Text-writers  concede  almost  unlimited  pow- 
er to  the  state  legislatures  in  respect  to  the 
division  of  to^\Tis  and  the  alteration  of  their 
boundaries,  but  they  all  agree  that  in  the  exer- 
cise of  these  powers  they  cannot  defeat  the 
rights  of  creditors  nor  impair  the  obligation  of 
a  valid  contract.  1  Dill.  Mun.  Coi-p.  §  128; 
Blanchard  v.  Bissell,  11  Ohio  St.  9(5;  U.  S.  v. 
Treasurer  of  Muscatine  Co.,  1  Dill.  522,  528, 
Fed.  Cas.  No.  16,,538. 

Concessions  of  power  to  municipal  corpora- 
tions are  of  high  importance;  but  they  are  not 
contracts,  and  consequently  are  subject  to  leg- 
islative control  without  limitation,  unless  the 
legislature  oversteps  the  limits  of  the  constitu- 
tion.   Layton  v.  New  Orleans,  12  La.  Ann.  515. 

Bonds  having  been  issued  and  used  by  a 
city  for  purchasing  land  for  a  park,  which 
was  pledged  for  the  payment  of  the  bonds, 
held,  that  a  subsequent  act  of  the  legislature 
authorizing  a  sale  of  a  portion  of  the  park, 
free  of  all  liens  existing  by  virtue  of  the  orig- 
inal act,  was  in  violation  of  the  federal  con- 
stitution, as  impairing  the  obligation  of  con- 
tracts. Commi.ssioners  v.  Armstrong,  45  N.  Y. 
2;M,  247. 

Laws  passed  by  a  state  Impairing  the  obliga- 
tion of  a  contract  are  void,  and  if  a  state  can- 
not pass  such  a  law,  it  follows  that  no  agency 
can  do  so  which  acts  under  the  state  with  dele- 
gated autliority.  Cooley,  Const.  Lira.  (4th  Ed.) 
241;    Ang.  &  A.  Corp.  (Utlj  Ed.)  §S  332.  3:33. 

Municipal  debts  cannot  be  paid  by  an  act  of 
the  legislature  annulling  the  charter  of  the  mu- 
nicipality, and.  if  not,  then  the  creditors  of 
such  a  ptilitical  division  must  have  some  rem- 
edy after  the  annulment  takes  place.     With- 


out officers,  or  the  power  of  electing  such 
agents,  a  municipal  corporation,  if  it  can  be  so 
oalletl,  would  be  an  entity  very  ditticult  to  be 
subjected  to  judicial  process  or  to  legal  respon- 
sibility; but  when  the  entity  itself  is  extin- 
guished, and  the  inhabitants  with  its  territory 
and  other  property  are  transferred  to  other 
municipalities,  the  suggestion  that  creditors 
may  pursue  their  remedy  against  the  original 
contracting  party  is  little  less  than  a  mockery. 
Public  property,  with  the  inhabitants  and  their 
estates,  and  the  power  of  taxation,  having 
been  transferred  by  the  authority  of  the  legis- 
lature to  the  appellants,  the  principles  of  eq- 
uity and  good  conscience  require  that  inas- 
much as  they  are,  and  have  been  for  nearly 
twenty  years,  in  the  enjoyment  of  the  benefits 
resulting  from  the  annexation,  they  shall  in 
due  proportions  also  bear  the  burdens.  New 
Orleans  v.  Clark,  95  U.  S.  644,  654. 

Equitable  rules  of  decision  are  suflSciently 
comprehensive  in  their  reach  to  do  justice  be- 
tween parties  litigant,  and  to  overcome  every 
ditficultj-  which  can  be  suggested  in  this  case. 
States  are  divided  and  subdivided  into  such 
municipalities,  called  counties,  cities,  towns, 
and  school  districts,  and  the  legislatiu-e  of  ev- 
ery state  is  required  every  year  to  pass  laws 
modifying  their  charters  and  enlarging  or  di- 
minishing their  boundaries.  Nor  are  the  ques- 
tions presented  in  this  case  either  new  in  pxin- 
ciple  or  difficult  of  application.  New  forms 
are  given  to  such  charters  in  every  day's  ex- 
perience, when  the  limits  of  an  old  corpoi:a- 
tion  are  changed  by  annexation  of  new  terri- 
tory, or  portions  of  the  territory  of  the  old  mu- 
nicipality are  set  off  and  annexed  to  another 
town.  Both  corporations  in  such  a  case  con- 
tinue, though  it  may  be  that  the  charters  are 
much  changed,  and  that  the  inhabitants  of  the 
teiTitory  annexed  or  set  off  fall  under  differ- 
ent officers  and  new  and  very  diverse  regula- 
tions. Beckwith  v.  City  of  Racine,  7  Biss. 
142,  149,  Fed.  Cas.  No.  1,213. 

Pecuniary  burdens  may  be  increased  or  di- 
minished by  the  change;  but,  in  the  absence 
of  express  provisions  regulating  the  subjtK?t,  it 
will  be  presumed  in  every  case  where  both 
municipalities  are  continued,  that  the  outstand- 
ing linbilities  of  the  same  remain  unaft'ected 
by  such  legislation.  Unlike  that  in  this  case, 
the  charter  of  the  old  town  was  vacated  and 
annulled,  from  which  it  follows  that  the  same 
principles  of  justice  require  that  the  appellant 
towns,  to  which  the  teiTitory,  property,  and  in- 
habitants of  the  anniilled  municipality  were 
annexed,  should  become  liable  for  its  outstand- 
ing indebtedness. 

Decree  affirmed. 

Mr.  Justice  MILLER,  with  whom  concurred 
Mr.  Justice  FIELD  and  Mr.  Justice  BRAD- 
LEY, dissenting: 

I  am  of  opinion  that  it  requires  legislation  to 
make  a  legal  obligation  against  the  new  town, 
and  make  the  apiwrtionment  of  the  debt;  and 
I  dissent  on  that  ground  from  the  judgment 
and  opinion  of  the  court  in  this  case. 


48 


OFFICERS  AND  AGENTS  OF  PUBLIC  CORPORATIONS. 


MARQUIS  V.  CITY  OF  SANTA  ANA.     (No. 
19,380.) 

(37  Pac.  G50,  103  Cal.  GGl.) 

Supreme  Court  of  California.     Sept.  1,  18&4. 

Department  1.  Appeal  from  superior  court, 
Oran.se  county;  J.  W.  Towner,  Judge. 

Action  by  W.  H.  Marquis  against  the  city 
of  Santa  Ana  for  salary  as  assessor.  Judg- 
ment for  plaintiff.  Defendant  appeals.  Af- 
firmed. 

West  &  Heathman,  for  appellant  Jas.  G. 
Scarborough,  for  respondent. 

m  *****  * 

HARRISON,  J.i    2.  Section  755  of  the  munic- 
ipal government  act  (St.  188:3,  p.  251)  provides: 
"The  clerk,  treasurer,  assessor,  mai'shal,  city  at- 
torney and  recorder  shall  severally  receive 
at  stated  times  a  compensation  to  be  fixed 
by  ordinance  by  the  board  of  trustees,  which 
compensation  shall  not  be  increased  or  di- 
minished after  their  election,  or  during  their 
several  terms  of  office."    The  power  of  the 
legislature  to  abolish  the  office  of  city  treas- 
urer, or  to  change  the  compensation  of  the 
officer,  or  its  power  to  authorize  the  city  to 
change  his  compensation  during  his  term  of 
office,  is  not  presented  in  the  present  case, 
as  the  legislature  has  neither  abolished  the 
office,    nor   changed   the   compensation,    nor 
given  to  the  city  the  authority  to  make  such 
I  change.     As  the  power  of  the  defendant  to 
1  fix  or  change  the  salary  of  its  officers  rests 
I  entirely   upon   statute,   the  exercise   of  this 
power  is  subject  to  all  the  limitations  con- 
tained   in    the   statute.      The    plaintiff   was 
elected  to  the  office  of  city  assessor  after  the 
(  adoption  of  the  ordinance  fixing  the  amount 
of  his  salary,  and  the  limitation  in  the  above 
section  that  his  compensation  shall  not  be 
increased  or  diminished  during  his  term  of 
oflice  renders  the  act  of  the  defendant  re- 
pealing the  ordinance  fixing  his  salary  nuga- 
,  tory.     As  the  defendant  could  not  directly, 
I  by  express  ordinance  for  that  purpose,  di- 
minish the  amount  of  his  salary,  the  same 
I  result  could   not  be  accomplished  by  it  iu- 
j  directly,  either  by  accepting  the  provisions 
of  the  act  of  ]\[arch   2,   181tl,  or  by   doing 
away    with   the   neces.sity   for   his    services 
through  its  adoption  of  the  ordinance  abol- 
;  ishing  the  street  poll  tax.     The  right  of  an 
officer  to  the  salary  fixed  by  law  for  that 
office  is  not  impaired  by  any  change  that 
j  may  be  made  in  tlie  duties  of  the  office,  or 

I  even  by  an  entire  cessation  of  those  duties, 
so  long  as  the  office  itself  remains  in  exist- 
ence. 

3.  It  is  urged  by  the  appellant  that  its 
election  to  avail  itself  of  the  provisions  of 
the  act  of  March  2,  181)1,  had  the  effect  to 
abolish  the  office  of  city  assos.sor.  As  the 
oflice  is,  however,  created  by  the  legisla- 
1  ture,  it  could  not  be  directly  abolished  by 

1  I'art  of  the  opinion  is  omitted. 


the  city;  much  less  could  its  abolition  be  I 
implied  from  any  act  that  did  not  in  terms! 
purport  to  abolish  it.  The  office  is  provided' 
for  in  section  752  of  the  municipal  govern- 
ment act,  which  has  never  been  repealed; 
and  the  act  of  March  2,  1891,  instead  of  sus- 
taining the  suggestion  of  an  implied  repeal 
of  that  section,  expressly  declares  that  its 
provisions  shall  not  be  given  force  in  any 
city  until  it  shall  have  passed  an  ordinance 
electing  to  avail  itself  thereof,  on  or  before 
the  first  Monday  in  INIarch  of  each  year,  thus 
implying  that  the  office  continues  to  exist. 
The  duties  of  the  city  assessor  are  fixed  by  , 
section  787  of  the  municipal  government  act; 
and  while  it  maj^  be  conceded  that  the  elec- 
tion by  the  defendant  to  avail  itself  of  the 
provisions  of  the  act  of  March  2,  1891,  did 
away  with  the  necessity  for  the  performance 
by  the  assessor  of  any  acts  connected  with 
the  assessment  of  property,  theretofore  im- 
posed upon  him,  so  long  as  such  election 
remained  in  force,  it  does  not  follow  that  the 
office  of  assessor  was  thereby  abolished.  Sec- 
tion 787  prescribes  as  one  of  the  duties  of 
this  office  that  "the  assessor  shall  during 
said  term  also  make  a  list  of  all  male  per- 
sons residing  within  the  limits  of  such  city 
over  the  age  of  twenty-one  years,  and  shall 
verify  said  list  by  his  oath,  and  shall  on  or 
before  the  first  Monday  of  August  in  each 
year  deposit  the  same  with  the  city  clerk." 
It  is  urged  by  the  defendant  that,  inasmuch 
as  the  only  apparent  object  for  which  this 
list  is  to  be  made  is  to  form  the  basis  for 
collecting  an  annual  street  poll  tax,  the  re- 
peal of  the  ordinance  providing  for  the  street 
poll  tax  relieved  the  plaintiff  from  the  duty 
of  preparing  this  list.  The  statute,  how- 
ever, under  which  he  holds  his  office,  makes 
the  preparation  of  this  list  one  of  his  official 
duties;  and  we  are  not  at  liberty  to  assume 
that  the  only  object  of  this  requirement  was 
to  enable  the  city  to  collect  a  street  poll  tax, 
or  that  he  would  be  justified  in  omitting 
this  official  duty  prescribed  by  the  statute, 
even  though  the  city,  by  its  ordinance,  ren- 
dered his  act  in  preparing  it  of  no  avail  to  it. 
The  city  had  still  the  power  to  pass  an  or- 
dinance imposing  this  tax,  and  might  then 
avail  itself  of  the  list  thus  prepared;  but, 
whether  the  duties  have  been  increased  or 
diminished,  or  entirely  dispensed  with,  so 
long  as  the  office  remains,  the  salary  affixed 
thereto  is  an  incident  of  the  office,  and  must 
be  paid  to  the  incumbent.  We  have,  how- 
ever, seen  that  the  office  has  not  been  abol- 
ished; and  the  defendant  does  not  contend 
that,  if  the  office  is  still  in  existence,  the 
respondent  is  not  its  incumbent.  It  follows 
that  he  is  entitled  to  the  salary  attached  to 
the  oflice  at  the  time  of  his  election,  and 
that  the  action  of  the  court  in  holding  this 
defense  to  be  unavailing  was  correct.  The 
judgment  is  affirmed. 


We     concur: 
FLEET,  J. 


GAROUTTE,      J.;       VAN 


DEFINITION  OF  PUBLIC  OFFICE  AND  OFFICER. 


49 


HALL  V.  STATE  OF  WISCONSIN. 

(103  U.  S.  5.) 

Supreme   Court  of  United   States.     Oct.,   1S80. 

Error  to  the  supreme  court  of  the  state  of 
Wisconsin. 

Mr.  Lutlior  S.  Dixon,  for  plaintiff  in  error. 

Mr.  Justice  SWAYNE  delivered  the  opinion 
of  the  court. 

This  is  a  writ  of  error  to  the  supreme  court 
of  Wisconsin.  The  case  we  are  called  on  to 
consider  is  thus  disclosed  in  the  record: 

By  an  act  of  the  legislature  entitled  "An  act 
to  pi'ovide  for  a  geoloii'ical,  mineralogieal,  and 
agricultural  survey  of  the  state,"  approved 
^larch  3,  1S57,  James  Hall,  of  the  state  of 
New  York,  the  plaintiff  in  error,  and  Ezra 
Carr  and  Edward  Daniels,  of  Wisconsin,  were 
appointed  "commissioners"  to  make  the  survey. 
Their  duties  were  specifically  defined,  and 
were  all  of  a  scientific  character. 

They  were  required  to  distribute  the  func- 
tions of  their  work  by  agreement  among  them- 
selves, and  to  employ  such  assistants  as  a  ma- 
jority of  them  might  deem  necessary. 

The  governor  was  required  "to  make  a  writ- 
ten contract  with  each  commissioner"  for  the 
performance  of  his  allotted  work,  and  "the 
compensation  therefor,  including  the  charge  of 
each  commissioner";  and  it  was  declared  that 
"such  contract  shall  expressly  provide  that  the 
compensation  to  such  commissioners  shall  be 
at  a  certain  rate  per  annum,  to  be  agreed  up- 
on, and  not  exceetling  the  rate  of  two  thousand 
dollars  per  annum,  and  that  payment  will  be 
made  only  for  such  part  of  the  year  as  such 
commissioner  may  actually  be  engaged  in  the 
discharge  of  his  duty  a-s  such  commissioner." 

In  case  of  a  vacancy  occiu-ring  in  the  com- 
mission, the  governor  was  empowered  to  fill  it, 
and  he  was  authorized  to  "remove  any  mem- 
ber for  incompetency  or  neglect  of  duty." 

To  carry  out  tlie  provisions  of  the  act,  the 
sum  of  5^0.000  per  annum  for  six  yeare  was  ap- 
propriated, "to  be  paid  to  the  persons  entitled 
to  receive  the  same." 

By  an  act  of  the  legislature  of  April  2,  1800, 
Hall  was  made  the  principal  of  the  commis- 
sion, and  was  vested  with  the  general  super- 
vision and  control  of  the  sui'vey.  He  was 
required  to  contract  with  J.  D.  Whitney  and 
with  Charles  Whittlesey  for  the  completion 
within  the  year  of  their  respective  surveys. 
To  carry  into  effect  these  provisions,  the  gov- 
ernor was  authorized  to  draw  such  portion  of 
the  original  appropriation,  not  drawn  previous 
to  the  29th  of  May,  IS^S,  as  might  be  neces- 
saiy  for  that  purpose,  the  residue  to  be  other- 
wise used  as  directed. 

By  a  subsequent  act  of  March  21,  18G2,  both 
the  acts  before  mentioned  were  repealed  with- 
out qualification. 

On  the  20th  of  May,  1858,  Hall  entered  into  a 

contract  with  the  governor,  whereby  it  was 

stipulated  on  his  part  that  he  should  perform 

the   duties   therein    mentioned    touching    the 

ABB.CORP.— i 


survey,  "this  contract  to  continue  till  the  third 
day  of  March,  1803,  unless  the  said  Hall 
should  be  removed  for  incompetency  or  neglect 
of  duty,  *  *  *  or  unless  a  vacancy  shall  oc- 
cur in  his  office  by  his  com  act  or  default." 

On  the  part  of  the  state  it  was  stipulated 
"that  the  said  Hall  shall  receive  for  his  com- 
pensation and  expenses,  including  the  ex- 
pense of  ills  department  of  said  sm'vey,  at  the 
rate  of  $2,000  per  annum:  *  *  *  jjrovided, 
that  for  such  time  as  said  Hall  or  his  assist- 
ants shall  not  be  engaged  in  the  prosecution  of 
his  duties,  according  to  the  terms  of  said  act 
and  of  this  contract,  deduction  shall  be  made, 
pro  rata,  from  the  sum  of  his  annual  compensa- 
tion and  expenses." 

Hall  brought  this  action  upon  the  conti-act 
The  declaration  avers  that  immediately  after 
the  execution  of  the  contract  he  entered  upon 
the  performance  of  the  duties  thereby  enjoin- 
ed upon  him,  and  continued  in  their  faithful 
performance  until  the  time  specified  in  the  con- 
tract for  its  expiration,  to  wit,  the  3d  of 
March,  1863;  that  he  was  not  removed  by  the. 
governor  for  incompetency  or  neglect,  nor 
was  any  complaint  ever  made  by  the  governor 
against  him;  that  he  never  at  any  time,  di- 
rectly or  indirectly,  assented  to  the  repeal  of 
the  acts  of  1857  and  1860;  and  that  thereafter 
he  continued  in  the  performance  of  his  la- 
bors the  same  as  before,  and  that  for  the  year 
ending  March  3,  1863,  he  devote<l  his  whole 
time  and  skill,  without  cessation,  to  the  work. 

He  avers,  further,  that  for  his  services  per- 
formed prior  to  March  3,  1862,  he  was  fully 
paid,  but  that  for  the  year  ending  March  3, 
1863,  he  had  received  nothing;  that  payment 
was  demanded  and  refused  on  the  3d  of  Decem- 
ber, 1863;  and  that  the  defendant  is  therefore 
justly  indebted  to  him  in  the  sum  of  $2,000, 
with  interest  from  the  date  last  mentioned. 

He  avers,  finally,  that  on  the  30th  of  Janu- 
ary, 1875,  he  presenteii  his  claim  to  the  legis- 
lature by  a  proper  memorial,  and  that  its  al- 
lowance was  refused. 

The  state  demurred  upon  two  gi'ounds: 

(1)  That  the  complaint  did  not  show  facts 
sufiicient  to  constitute  a  cause  of  action. 

(2)  That  it  appeared  upon  the  face  of  the 
complaint  that  the  cause  of  action  did  not  ac- 
cnie  within  six  years  before  the  commence- 
ment of  the  action. 

In  support  of  the  first  objection,  it  was  in- 
sisted that   the  employment  of   the  plaintjff 
was  an   office,   and  that  the  legislature  had 
therefore  the  right  to  abolish  it  at  pleasure. 
For  the  plaintiff,  it  was  maintained  that  there    i 
was  a  contract,  and  that  the  repealing  act  im-   / 
paired  it.^  obligation  in  violation  of  the  contract  ' 
clause  of  the  constitution  of  the  United  States. 

The  court  sustained  the  demurrer  upon  the 
first  ground,  and,  the  plaintiff  declining  to 
amend,  dismissed  his  petition.  The  opinion  of  / 
the  court  is  limited  to  the  first  point,  and  ours 
will  be  confined  to  that  subject.  The  whole 
ca.so  resolves  itself  into  the  issue  thus  raised 
by  the  parties. 

No  question  is  made  as  to  the  suability  of  the  } ' 


50 


OFFICERS  AND  AGENTS  OF  PUBLIC  CORPORATIONS. 


a 


state.  The  proceeding  is  authorized  by  a  lo- 
cal statute.  The  question  raised  by  the  record 
is  within  our  jurisdiction.  In  tlie  exercise  of 
that  jurisdiction  in  such  cases  this  court  is  un- 
fettered by  the  authority  of  state  adjudica- 
tions. It  acts  independently,  and  is  governed 
by  its  own  views.  Townsliip  of  Pine  Gi'ove  v. 
Talcott.  19  Wall.  GGti. 

Tlie  question  to  be  considered  was  before 
us  in  U.  S.  v.  HartweU,  6  Wall.  385.  It  was 
there  said  that  '"an  oljSce  is  a  public  station  or 
employment  confeiTcd  by  the  appointment  of 
government.  Tlio  term  embraces  the  ideas 
of  tenure,  duration,  emolument,  and  duties. 
*  *  *  A  government  office  is  different  from  a 
government  contract.  The  latter,  from  its  na- 
ture, is  necessarily  limited  in  its  duration  and 
sijecitic  in  its  objects.  The  terms  agreed  upon 
define  the  rights  and  obligations  of  both  par- 
ties, and  neither  may  depart  from  them  with- 
out the  assent  of  tlie  other." 

In  U.  S.  V.  Maurice,  2  Brock.  96,  Fed.  Cas. 
No.  15.747,  Mr.  Chief  Justice  Marshall  said: 
"Although  an  office  is  an  employment,  it  does 
not  follow  that  every  employment  is  an  office. 
A  man  may  certainly  be  employed  under  a 
conti-act,  express  or  implied,  to  perform  a  serv- 
ice without  becoming  an  officer."' 

Tlie  case  before  us  comes  within  the  defini- 
tion we  have  taken  from  U.  S.  v.  HartweU, 
supra. 

Tlie  statute  under  which  the  governor  acted 
was  explicit,  that  he  should  "make  a  written 
contract  with  each  of  the  commissioners  afore- 
said, expressly  stipulating  and  setting  fortli 
the  nature  and  extent  of  the  services  to  be 
rendered  by  each,  and  the  compensation  there- 
for," and  that  "such  contract"  should  expres.5- 
ly  provide  that  the  compensation  of  each  com- 
missioner should  be  at  a  certain  rate  per  an- 
num, to  be  agreed  upon,  and  not  exceeding 
$2,000  per  annum  for  the  time  such  commis- 
sioner may  be  actually  engaged. 

The  action  of  the  governor  conformed  to  this 
view.  The  instrument  executed  pursuant  to 
the  statute  recites  that  it  is  an  "agreement" 
between  the  governor  as  one  party,  and  Hall, 
Carr,  and  Randall,  the  commissioners,  as  the 
other.  They  severally  agreed  to  do  what  the 
statute  contemplated,  and  he  agreed  to  pay  all 
that  it  pei'mitted.  j 

The  names  and  seals  of  the  parties  were  af- 
fixed to  the  agreement,  and  its  execution  was 
attested  by  two  subscribing  witnesses,  as  in 
other  cases  of  conti-act.  i 

^^'llere  an  office  is  created,  the  law  usually  I 
fixes  the  compensation,  prescribes  its  duties, 
and  requires  that  the  appointee  shall  give  a 
bond  with  sureties  for  the  faithful  performance 
of  the  sen'ice  required.  To  do  all  this,  if  the 
employment  were  an  office,  by  a  contract  witli 
the  oflicer  and  without  his  bond  would,  to  say 
the  least,  be  a  singular  anomaly. 

The  acts  of  1857  and  IStiO  both  speak  of  Hall  ; 
as  "of  Albany,  N.  Y."  He  was  not,  there-  j 
fore,  a  citizen  or  a  resident  of  the  state  of  ! 
Wisconsin. 

It  is  well  settled  in  Wisconsin  that  such  a  ' 


person  cannot  be  a  public  officer  of  that  state. 
State  V.  Smith,  14  Wis.  497;  State  v.  Mun-ay, 
28  Wis.  96. 

In  U.  S.  V.  Hatch,  the  supreme  court  of  Wis- 
consin decided  that  the  term  "civil  officers"  as 
used  in  the  organic  law  (act  of  congress  of 
April  20,  1836)  embraces  only  those  officers  in 
whom  a  portion  of  the  sovereignty  is  vested, 
or  to  whom  the  enforcement  of  municipal  reg- 
ulations or  the  control  of  the  general  interests 
of  society  is  confided,  and  does  not  include  such 
officers  as  canal  commissioners.     1  Pin.  182. 

In  Butler  v.  Regents  of  the  University,  32 
Wis.  124,  the  same  court  held,  without  dissent, 
that  a  professor  in  the  state  university,  ap- 
pointed for  a  stated  term  with  a  fixed  salary, 
was  not  a  public  officer  in  such  a  sense  as  pre- 
vented his  employment  from  creating  a  con- 
tract relation  between  himself  and  the  regents. 

It  is  hard  to  distinguish  that  case  in  principle 
from  the  one  before  us. 

In  a  sound  view  of  the  subject  it  seems  to  us 
that  the  legal  position  of  the  plaintiff  in  error 
was  not  materially  different  from  that  of  par- 
ties who,  pursuant  to  law,  enter  into  stipu- 
lations limited  in  point  of  time,  with  a  state, 
for  the  erection,  alteration,  or  repair  of  pub- 
lic buildings,  or  to  supply  the  officers  or  em- 
ploj'es  who  occupy  them  with  fuel,  light,  sta- 
tioneiy,  and  other  things  necessary  for  the 
XJublic  service.  The  same  reasoning  is  appli- 
cable to  the  countless  emplbj^es  in  the  same 
way,  under  the  national  government. 

It  would  be  a  novel  and  startling  doctrine  to 
all  these  classes  of  persons  that  the  govern- 
ment might  discard  them  at  pleasure,  because 
their  respective  employments  were  public  of- 
fices, and  hence  without  the  protection  of  con- 
tract rights. 

It  is  not  to  be  supposed  that  the  plaintiff  in 
en'or  would  have  turned  his  back  upon  like  em- 
ployment, actual  or  potential,  elsewhere,  and 
have  stipulated  as  he  did  to  seiwe  the  state  of 
Wisconsin  for  the  period  named,  if  the  idea 
had  been  present  to  his  mind  that  the  state 
had  the  reserved  power  to  break  the  relation 
between  them  whenever  it  might  choose  to  do 
so.  Nor  is  there  anything  tendiiag  to  show 
that  those  who  acted  in  behalf  of  the  state 
had  any  such  view  at  that  time.  All  the  facts 
disclosed  point  to  the  opposite  conclusion  as  to 
both  parties. 

Undoubtedly,  as  a  general  proposition,  a 
state  may  abolish  any  public  office  created  by  a 
public  law  (Newton  v.  Commissioners,  100  U. 
S.  559).  but  even  with  respect  to  those  offices 
the  circumstances  may  be  such  as  to  create  an 
exception.  In  Ti'ustees  of  Dartmouth  College 
v.  Woodward,  Mr.  Justice  Story  said:  "It  is 
admitted  that  the  state  legislatures  have  pow- 
er to  enlarge,  repeal,  and  limit  the  authorities 
of  public  officers  in  their  official  capacities,  in 
all  cases  where  the  constitutions  of  the  states 
respectively  do  not  prohibit  them;  and  this, 
among  others,  for  the  very  reason  that  there  is 
no  express  or  implied  contract  that  they  shall 
always,  during  their  continuance  in  office,  ex- 
ercise such  authorities.    *    *    *    But  when  the 


DEFIXITIOX  OF  PUBLIC  OFFICE  AND  OFFICER. 


51 


legislature  makes  a  conti-act  with  a  public  of- 
ficer, as  in  case  of  a  stipulated  salary  for  his 
services  during  a  limited  period,  this,  during 
the  limited  period,  is  just  as  much  a  contract, 
within  the  pun'iew  of  the  constitutional  pro- 
hibition, as  a  lilie  contract  would  be  between 
two  private  citizens."     4  Wheat.  518,   G94. 

When  a  state  descends  from  the  plane  of  its 
sovereignty,  and  contracts  with  private  per- 
sons, it  is  regarded  pro  hac  vice  as  a  private 
person  itself,  and  is  bound  accordingly.  Davis 
V.  Gray,  16  Wall.  20.3. 

The  general  government  has  no  powers  but 
such  as  are  given  to  it  expressly  or  by  implica- 
tion. 


The  states  and  their  legislatures  have  all 
such  as  have  not  been  surrendered  or  prohibit- 
ed to  them.  Gilman  v.  Philadelphia,  3  Wall. 
713.     And  see,  also,  2  Greenl.  Ci-uise,  67, 

That  the  laws  under  which  the  governor  act- 
ed, if  valid,  gave  him  the  power  to  do  all  he 
did,  is  not  denied.  We  will  not,  therefore, 
dwell  upon  that  point.  The  validity  of  those 
laws  is  too  clear  to  admit  of  doubt.  It  would 
be  a  waste  of  time  to  discuss  the  subject. 

"V^'e  are  of  the  opinion  that  the  supreme  court 
of  the  state  erred  in  the  judgment  given.  It 
will  therefore  be  reversed,  and  the  case  re- 
manded for  further  proceedings  in  conformity 
with  this  opinion.    So  ordered. 


52 


OFFICERS  a>;d  agents  of  public  corporations. 


STATE  ex  rel.  KUHL:MAN  t.   ROST,  Judge, 
et  al.     (No.   11,599.) 

(16  South.  77G,  47  La.  Ann.  53.) 

Supreme  Court  of  Louisiana.     Jan.  2,  1895. 

Application  by  B.  J.  Kuhlman  for  a  writ 
of  proliibition  forbiddlni;  Emile  Rost,  judge 
of  the  Twenty-First  judicial  district  court,  to 
take  cognizance  of  a  cause,  and  forbidding 
L.  A.  Cambre  from  prosecuting  a  writ  of  in- 
junction enjoining  the  relator  from  perform- 
ing the  duties  of  a  police  juror.  Writ  allow- 
ed. 

Hamilton  N.  Gautier,  J.  L.  Gaudet,  and  E. 
Howard  McCaleb,  for  relator.  Gustave  V. 
Soniat,  for  respondents. 

NICHOLLS,  C.  J.  The  relator  in  this  case 
avers  that  he  has  been  duly  appointed  and 
qualified  as  police  juror  for  the  parish  of  St. 
Charles,  as  would  appear  by  an  annexed  com- 
mission and  oath;  that  since  qualifying  as 
aforesaid  he  has  held  said  office,  performed  all 
the  duties  thereof,  and  is  the  present  legal  in- 
cumbent in  the  actual  possession  of  said  office, 
and  is  entitled  to  continue  in  the  possession 
thereof,  to  the  exclusion  of  all  other  persons; 
that  he  is  in  reality  an  officer  de  jure  et  de 
facto,  and  no  court  is  competent  to  enjoin  and 
prohibit  him  from  performing  the  duties  of  his 
said  office  as  long  as  he  remains  in  possession 
as  aforesaid;  that  on  or  about  the  17th  daj  of 
October,  1894,  one  L.  A.  Cambre,  alleging 
and  representing  that  he  had  been  illegally 
removed  from  said  office  of  police  juror,  and 
that  relator  was  the  unlawful,  though  com- 
missioned and  qualified,  incumbent,  in  full 
possession  of  said  office,  performing  the  du- 
ties thereof,  obtained  from  the  judge  of  the 
Twenty-First  judicial  district  court  for  St. 
Charles  parish,  on  such  ex  parte  showing,  a 
mandatory  writ  of  injunction,  prohibiting  re- 
lator from  in  any  manner  performing  the 
duties  of  his  said  office,  or  attending  the 
meetings  of  said  police  jury,  until  such  time 
as  the  title  to  said  office  should  have  been 
judicially  determined,  thus  practically  oust- 
ing relator  from  office  without  judicial  de- 
termination of  relator's  right  to  his  posses- 
sion of  said  office;  that  said  Cambre  has  not, 
nor  has  any  person,  judicially  claimed  the 
said  efface  advei-sely  to  relator;  that  relator 
appeared  before  the  judge,  and  in  open  court 
excepted  to  his  jurisdiction,  and  moved  the 
court  to  dissolve  the  injunction,  and  to  re- 
voke the  order  granting  the  same,  upon  the 
ground  that  the  said  judge  was  incompetent, 
and  the  court  without  jurisdiction,  ratione 
materiae,  to  so  enjoin  relator,  admittedly  an 
officer  de  facto;  that  said  judge  and  court 
persist  in  usurping  jurisdiction,  and  refuse  to 
revoke  the  said  order,  and  to  set  aside  the 
Injunction;  that  relator  has  no  adequate  rem- 
edy other  than  the  writ  of  prohibition  to 
be  issued  by  the  supreme  court;  that  the 
cause  is  not  an  appealable  one,  the  amount 
involved  being  less  than  $100;    that,  unless 


writs  of  prohibition  issue,  relator  would  suf- 
fer great  and  irreparable  injury,  and  all 
highly  injurious  to  the  interest  of  the  com- 
munity. Relator  accordingly  prayed  that  this 
court  cause  writs  of  prohibition  to  issue  to 
the  judge  of  the  Twenty-First  judicial  dis- 
trict court  for  the  parish  of  St.  Charles,  and 
to  L.  A.  Cambre,  forbidding  the  said  judge 
to  take  cognizance  of  said  cause,  anrl  for. 
bidding  the  plaintiff  Cambre  from  prosecut- 
ing his  said  writ  of  injunction,  and  declaring 
the  same  inoperative,  and  for  all  further  nec- 
essary orders  and  genei-al  and  equitable  re- 
lief. Attached  to  relator's  petition  is  a  com- 
mission of  the  governor  of  the  state,  bearing 
date  October  6,  1894,  appointing  B.  J.  Kuhl- 
man  police  juror,  ward  5,  St.  Charles  parish, 
vice  L.  A.  Cambre,  removed,  on  which  is  in- 
dorsed the  oath  of  office  of  said  Kuhlman  as 
police  juror,  under  said  appointment,  taken 
on  the  10th  October,  1894;  also  a  certified 
copy  of  the  proceedings  of  the  police  juiy  of 
St.  Charles  at  a  meeting  held  on  the  10th 
October,  1894.  This  meeting  was  composed 
of  H.  L.  Youngs,  T.  C.  Madere,  A.  E.  Picard, 
P.  M.  Kenner,  and  B.  J.  Kuhlman.  In  the 
pi'oceedings  it  is  recited  that  the  last  three 
were  police  jurors  recently  appointed  as 
such  by  the  governor,  vice  three  other  police 
jurors,  whom  the  governor  had  removed,  viz. 
Picard,  vice  Le  Sassier,  removed;  Kenner,  vice 
Sarpy,  removed;  and  Kuhlman,  vice  Cambre, 
removed.  The  two  other  persons  were  po- 
lice jurors  who,  together  with  the  three  who 
had  been  removed,  constituted  the  police  ju- 
ry prior  to  the  removals.  In  the  proceedings 
mentioned  it  is  declared  that  these  two  police 
jurors  recognized  the  three  newly-appointed 
jurors  as  members  of  the  jury.  As  so  com- 
posed and  organized,  the  police  jui^  proceed- 
ed to  business,  and  elected  L.  A.  Keller  as 
supervisor  of  election.  Relator's  petition 
considered,  this  court  ordered  the  judge  of 
the  district  court  and  L.  A.  Cambre  to  show 
cause  why  a  writ  of  piX)hibition  should  not 
issue,  and  be  made  perpetual,  and  that  in  the 
meantime  the  said  parties  be  restrained  from 
interfering  with  Kuhlman,  the  relator,  as  a 
police  juror  for  the  parish  of  St.  Charles.  It 
further  ordered  that  a  writ  of  certiorari  issue 
to  the  district  judge,  directing  him  to  forwai'd 
to  this  court  a  certified  copy  of  the  proceed- 
ings before  him  in  this  matter,  to  the  end 
that  their  legality  might  be  ascertained.  A 
transcript  was  forwarded,  as  directed  by  our 
order.  In  transmitting  the  record,  the  dis- 
trict judge  filed  an  answer  or  return,  in  which 
he  states  that  on  October  17,  1894,  the  peti- 
tion in  the  case  was  filed;  that  the  petitioner, 
alleging  that  ho  was  in  lawful  possession  of 
the  office  of  police  jui-or  of  the  parish  of  St. 
Charles,  and  that  defendant  was  about  to 
forcibly  take  possession  of  said  office,  in 
which  the  interest  of  petitioner  exceeded  the 
sum  of  .$.")0.  prayed  for  a  writ  of  injunction 
restraining  the  defendant  from  taking  pos- 
session of  said  office  pending  a  judicial  de- 
termination  of  his  right  and  title  thereto; 


REMOVAL  FROM  OFFICE. 


63 


that,  after  examining  the  petition  and  affi- 
davit annexed  thereto,  he  granted  the  writ 
of  injunction  on  petitioner's  furnishing  b:>nd 
In  the  sum  of  $200;  that  no  proceedings  were 
taken  in  the  case  until  Tuesday,  October 
23,  1891,  when  the  relator,  through  his  coun- 
sel, by  ex  parte  motions  in  open  court  move. 
for  an  order  setting  asiiie  the  writ  of  injunc- 
tion for  want  of  jurisdiction  ratione  materiae; 
that  no  plea  to  the  jurisdiction  of  respond- 
ent's court  had  previously  been  filed  or  of- 
fered; that  respondent  refused  to  take  im- 
mediate action  on  said  motions,  but  requested 
that  the  same  should  be  tried  by  a  rule  nisi, 
and  contradictorily  with  the  plaintiff;  that 
relator  insisted  upon  immediate  action  on 
said  ex  parte  motions,  which  motions,  for 
that  reason,  were  overruled  by  respondent, 
and  that  thereupon  the  relator,  through  his 
counsel,  notified  respondent  that  application 
would  at  once  be  made  to  this  court  for  writg 
of  prohibition  and  certiorari;  that  the  ques- 
tion of  jurisdiction  vel  uon  has  never  been 
passed  upon  by  him,  or  even  been  properly 
presented;  that  the  proceedings  held  before 
respondent  court  were  solely  injunction  pi*o- 
ceedings,  and  that  the  writ  issued  in  the 
case  was  granted  on  the  sworn  allegations 
of  the  plaintiff  that  he  was  in  the  lawful 
possession  of  the  office  of  police  juror  of  the 
parish  of  St.  Charles,  llespoudcnt  further 
avers  that  he  has  never  usurped  jurisdiction, 
and  that  he  has  never  refused  to  revoke  his 
said  order  or  set  aside  the  injunction;  that 
he  has  not  tried  to  control  or  interfere  with 
the  executive  department  of  the  state;  that 
under  article  11  of  the  constitution  of  the 
state  any  incumbent  of  a  public  office  is  en- 
titled to  appeal  to  the  courts  to  be  maintain- 
ed in  the  possession  of  his  office  pending  the 
judicial  determination  of  the  right  and  title 
to  said  office;  that  it  is  only  in  proceedings 
having  such  determination  for  their  object 
that  the  right  of  removal  of  police  jurors  by 
the  executive  can  be  presented;  that  under 
article  201  of  the  constitution  of  the  state  pro- 
vision is  expressly  made  for  the  manner  and 
form  of  removal  from  office;  and  finally,  that, 
the  proceedings  instituted  in  respondent's 
court  being  solely  injunction  proceedings,  no 
such  question  was  or  could  have  been  present- 
ed in  said  proceedings;  that  respondent  has 
acted  within  the  powei*s  vested  in  disitrict 
judges  by  the  constitution  and  laws  of  the 
state,  and  that  relator  is  not  entitled  to  the 
relief  asked  for. 

In  the  petition  for  injunction  filed  by  Cam 
bre  he  alleged:  That  he  was  appointed  by 
Gov.  Foster  as  a  police  juror  of  the  Fifth 
ward  of  St.  Charles  parish.  That  said  ap 
pointmeut  was  duly  confirmed  by  the  sen 
ate,  and  that  he  had  duly  takeu  his  oath  of 
office  as  such,  as  would  more  fully  appear  by 
the  commission  annexed  thereto.  That  since 
his  induction  into  office  ho  had  always  per 
formed,  and  still  continued  to  perform,  to 
the  best  of  his  knowledge  and  belief,  all  the 
duties  incumbent  on  him.     That  by  virtue  of 


his   said  appointment  and   confirmation  his 
term  of  office  did  not  expire  before  the  next 
general  election,  to  be  held  on  the  first  Tues- 
day   next    following    the    third    Monday    in 
April,  189G.     That  he  is  entitled  to  all  the 
fees,  emoluments,  and  perquisites  attach'^''' 
and  belonging  to  said  office  up  to  said  date, 
and  which  were  as  follows:     For  the  regu- 
lar meeting  of  November,  1804,  $3;    for  the 
regular  meetings  for  January,  March,  May, 
July,   September,  and  November,  1805,  $18; 
for  the   regular  meetings   for  January   and 
March,  1800,  .$G;    that  in  his  said  capacity  as 
police  juror   he  was  ex  officio  syndic  of  the 
Fifth  ward,  and  as  such  was  entitled  to  a 
yearly  salary  of  $2.j;    that  in  his  said  capac- 
ity as  police  juror  he  was  ex  officio  member 
of  the  board  of  reviewers,  and  that  as  such 
he  was  entitled  to  at  least  one  sitting,   or 
$3,— total,  $55.     That  at  the  last  meeting  of 
the  police  jury,  held  on  the  11th  day  of  Sep- 
tember,  1804,  it  was  moved  that  the  police 
jurj'  adjourn  to  the  next  regular  meeting,  on 
the  first  Monday  in  November,  1804,  which 
motion  was  adopted.     That  since  he  has  not 
received  any  notice   from  the  secretary  of 
the  police  jury,  or  any  other  officer,  appris- 
ing him  of  any  extra  meeting  of   the  police 
jury.     That  he  has  never  been  offlL-iaily  ap- 
prised of  his  removal  from  said  office,  and 
has  not  been  guilty  of  any  crime  or  cause 
that  should  warrant  his  removal,  and  there- 
fore that  petitioner  is  in  actual  and  physical 
possession  de  jure  and  de  facto  of  said  office, 
and  entitled  to  all  emoluments  thereto  at- 
tached and  belonging.    That  he  is  inform- 
ed and  verily  believes  that  one  B.  J.  Kuhl- 
man    illegally   and   wrongfully   claims    the 
aforesaid  office   of  petitioner,   and,   in   con- 
junction  with   others,   did  unlawfully  meet 
and  assemble  in  the  parish  of  St.   Charles 
on  the  10th  day  of  October,  1804,  and  did 
endeavor  to  transact  business  as  members  of 
the  police  jury  of  the  parish  of  St.  Charles. 
That,  in  order  to  properly  protect  the  pos- 
session of  petitioner  In  his  aforesaid  office 
against  the  interference  of  claimant    afore- 
said,   it   was    necessary   that   an   injunction 
should  issue,  ordering  and  commanding  the 
said  Kuhlman  to  desist  and  refrain  from  in- 
terfering with  petitioner  in  the  discharge  of 
his  duties  as  police  juror  of  the  Fifth  ward 
of  St.  Charles  parish,  and  particularly  that 
he  be   restrained,    enjoined,   and    prohibited 
from  attending,  sitting,  or  in  any  wise  act- 
ing as  police  juror  as  aforesaid,  at  any  time 
or  place,  and  more  particularly  the  next  reg- 
ular meeting  of  the  police  jury  on  the  first 
Monday  of  November,  1804,  and  until  the  ti- 
tle to  said  office  shall  have  been  judicially 
determined.     That,  unless  said  injunction  be 
granted,  petitioner  feared  and  believed  that 
Kuhlman  would  endeavor  to  take  the  law  in 
his  own  hands,  and,  with  the  assistance  of 
others,    practically   to   oust    petitioner,    the 
present  incumbent,   in   advance  of  judicial 
determination,  and  that  same  would  cause 
petitioner     irreparable     injury.       Petitioner 


54 


OFFICERS  AND  AGENTS  OF  PUBLIC  COEPORATIONS. 


prayed  that  the  court  issue  an  injunction, 
ordering  and  commanding  L.  A.  Cambre  to 
desist  and  refrain  from  interfering  with  pe- 
titioner in  the  discharge  of  his  duties  as 
police  juror  and  ex  officio  syndic  of  the  Fifth 
ward  of  St  Charles  parish,  and  particularly 
that  he  be  restrained,  enjoined,  and  pro- 
hibited from  attending,  sitting,  or  in  any 
wise  acting  as  police  juror  as  aforesaid,  at 
any  time  or  place,  and  more  particularly  on 
the  next  regular  meeting  of  the  police  jury 
on  the  first  ^londay  of  November,  1894,  and 
until  the  title  to  said  office  shall  have  been 
judicially  determined;  that  the  defendant  be 
cited;  and  that  the  writ  of  injunction  be 
made  absolute  and  perpetual.  The  district 
judge  ordered  that  a  writ  of  injunction  is- 
sue as  prayed  for,  on  petitioner's  furnishing 
bond,  with  solvent  security,  and  conditioned 
according  to  law,  in  the  sum  of  $200. 

On  petitioner's  executing  a  bond  for  the 
amount  fixed  in  favor  of  Kuhlmanto  secure 
to  him  the  payment  of  all  such  damages  as 
he  might  recover  in  case  it  should  be  de- 
cided that  the  injunction  was  wrongfully  ob- 
tained, a  writ  of  injunction  issued  as  or- 
dered. The  interest  which  the  public  might 
have  in  the  issues  raised  was  ignored,  and 
not  attempted  to  be  safeguarded  on  the 
bond.  The  commission  referred  to  in  the 
petition  as  being  attached  and  made  part  of 
it  showed  that  he  was  appointed  as  a  police 
juror  on  the  3d  of  June,  1S92,  and  qualified 
under  the  commission  on  the  5th  July,  1892. 
The  proceeding  of  Cambre  in  the  matter  of 
the  injunction  sued  out  which  has  been 
brought  before  us  in  this  case,  notwith- 
standing the  use  of  the  name  of  the  state  in 
its  title,  is  a  private  suit  of  Cambre  against 
Kuhlman.  Its  object,  however,  is  not  so 
much  to  stay  the  payment  to  Kuhlman  of 
any  moneys  which,  but  for  the  injunction, 
would  be  made  to  him  under  color  of  office 
as  a  police  juror,  as  through  the  arm  of  the 
judiciaiy  to  direct,  control,  and  regulate  the 
performance  of  public  duties  by  officers  of 
another  department  of  the  government. 
When  such  a  result  is  sought  to  be  brought 
about,  pleadings  of  an  exceedingly  specific 
character,  showing  exceptionallj-  strong  facts 
in  aid  of  the  relief  asked,  must  be  presented 
to  a  court  to  justify  its  assuming  jurisdic- 
\  tlon.  Mere  conclusions  of  law  or  conclu- 
sions of  ultimate  facts  will  not  suffice,  nor 
should  the  pleader  take  anything  by  failing 
to  bring  affirmatively  to  the  knowledge  of  the 
court,  if  known  to  him,  the  condition  of  af- 
fairs which  he  must  be  aware  would  eventu- 
ally be  advanced  as  those  upon  whicli  the  de- 
fendant was  basing  and  grounding  the  claims 
and  pretensions  under  which  he  was  acting. 
It  is  his  duty,  in  such  a  proceeding,  to  state, 
as  far  as  possible,  the  whole  case,  to  the  end 
that  the  court  may  be  completely  advised 
in  the  premises.  Nothing  should  be  held 
back  which,  if  known  to  the  court,  would 
probably  infiuence  it  in  determining  the  ques- 
tion of  its  own  powers.     Usually,  vague  and 


general  pleadings  are  not  fatal  to  a  demand. 
Imperfect  statement  of  a  cause  of  action  is 
ordinarily  remedied  by  amendment  on  excep- 
tion taken,  but  in  matters  of  the  present 
character  we  are  of.  the  opinion  that  the 
pleadings  in  the  case  alTcct  the  jurisdiction, 
and  that  a  court  should  not  act  at  all  un- 
less a  cau.se  of  action  is  plainly  set  out,  and 
is  manifest  on  the  face  of  the  papers;  and 
we  are  of  the  opinion  that  it  is  authorized  of 
its  own  motion,  and  in  spite  of  the  allega- 
tions of  the  petition  for  the  injunction,  to 
take  cognizance  of  matters  of  which  it  can 
legitimately  take  judicial  notice,  which  enter 
as  factoi's  in  determining  the  question  of  its 
own  powers  and  duties.  The  court  should 
be  first  assured  of  its  own  jurisdiction.  If  a 
district  judge  should  inadvertently  have  as- 
sumed it  under  circumstances  where  he 
should  not  have  done  so,  we  have  the  power, 
and  it  is  our  duty,  under  our  supervisory  con- 
trol over  the  lower  courts,  to  set  aside  the 
orders  given  by  him.  It  is  of  the  utmost  im- 
portance that  the  different  departments  of 
the  state  should  not  clash,  but  that  each 
should  pursue  its  legitimate  functions  free 
from  interference  from  the  other.  That 
there  may  be  cases  of  such  a  character  as  to 
force  the  judiciary,  in  the  discharge  of  its 
own  duty,  to  review,  to  declare  null  and  void, 
a.nd  to  set  aside  acts  of  the  legislature  or 
executive  departments,  is  beyond  question; 
but,  as  we  have  said,  the  occasion  which 
would  require  it  to  do  so  at  the  instance  of 
an  individual  citizen  by  way  of  injunction, 
which  would  at  once  ex  parte  restrain  and 
change  (temporarily,  at  least)  the  course 
which  public  affairs  would  naturally  have 
followed  but  for  the  injunction,  must  be  clear 
and  patent.  Private  interests  should  yield 
to  those  of  the  public.  In  the  case  at  bar 
it  is  clear  that  Cambre,  after  having  been 
appointed,  commissioned,  and  qualified  as  a 
police  juror  for  the  parish  of  St.  Charles  by 
the  governor,  was  subsequently  removed  by 
him,  and  the  relator,  Kuhlman,  appointed  in 
his  place;  that  simultaneously  two  other  po- 
lice jurors  were  removed  by  the  governor, 
and  others  appointed  in  their  places;  that 
the  three  new  appointees  qualified  under 
their  commissions,  and,  presenting  them- 
selves, with  their  commissions  and  oaths  of 
office,  to  the  remaining  police  jurors,  they 
were  recognized  by  the  latter  as  police  ju- 
rors, and  a  meeting  of  the  police  jury  was  or- 
ganized, in  which  the  new  appointees  partici- 
pated, selecting  or  electing  a  supervisor  of 
election  at  such  meeting,  and  that  the  in- 
jtinction  which  was  issued  was  applied  for 
and  granted  subsequent  to  this  meeting.  In 
his  petition  for  injunction,  Cambre  alleges 
that  "one  B.  J.  Kuhlman  illegally  and  wrong- 
fully claims  the  office  of  police  juror"  (to 
which  he  had  himself  been  appointed),  but 
he  does  not  infurm  the  court,  as  he  should 
have  done,  that  Kuhlman  chiimed  the  office 
under  a  commission  from  the  governor  of  a 
date  subsequent  to  that  of  his  own  commis- 


REMOVAL  FROM  OFFICE. 


55 


sion,  and  that  the  subsequent  commission 
was  issued  by  reason  of  his  own  removal 
from  office  by  the  chief  executive;  and,  while 
he  alleges  that  Kuhlman,  in  conjunction  with 
others,  did  unlawfully  meet  and  assemble 
in  the  parish  of  St.  Charles  on  the  10th  of 
October.  1S04,  and  did  endeavor  to  transact 
business  as  members  of  the  police  jury  of 
St.  Charles,  he  does  not  inform  the  court  that 
the  persons  with  whom  he  acted  in  conjunc- 
tion were  two  of  the  police  jurors  of  the  par- 
ish of  St.  Charles,  holding  by  undisputed  ti- 
tle, and  two  other  persons  who,  having  been 
appointed  by  the  governor  as  police  jurors. 
had  qualified  under  the  commissions  issued 
to  them,  and  who  were  recognized,  as  was 
Kuhlman,  by  the  older  members  as  police 
jurors  of  the  parish.  He  avers  that  "those 
parties  did  unlawfully  meet  and  assemble  as 
police  jurors,"  but  he  does  not  state  how  or 
why  the  meeting  was  unlawful.  The  ground 
for  that  attack  is,  we  infer,  to  be  found  in  the 
allegation  that  the  police  jury,  Avhen  it  had 
adjourned  before,  had  adjourned  to  its  next 
regular  meeting,  and  that  he  bad  not  been 
notified  of  a  called  meeting,  nor  notified  of 
his  having  been  removed  from  oflice  as  a 
police  juror.  No  other  reason  seems  to  have 
been  assigned.  There  is  no  charge  made  in 
the  petition  that  the  governor  was  without 
power  or  authority  to  remove  a  police  juror. 
If  any  such  claim  was  intended  to  be  ad- 
vanced, it  was  merely  iuferentially  and  con- 
sequentially advanced  under  the  allegation 
that,  by  virtue  of  his  appointment  and  con- 
firmation, his  term  of  otfice  did  not  expire 
before  the  next  general  election,  to  be  held  on 
the  first  Tuesday  next  following  the  third 
Monday  in  April,  18'JG,  and  M^e  do  not  think 
this  indirect  general  allegation  fairly  raised 
an  issue  as  to  the  governor's  legal  or  consti- 
tutional power  of  removing  a  police  juror 
from  his  office.  The  issue  that  he  tendered 
was  rather  that  the  governor  had  acted  im- 
properly, and  without  cause,  than  that  he 
had  acted  without  authority,— an  issue  which 
(granting  the  power  to  remove)  was  one 
which  should  not  have  been  raised,  and 
could  not  be  passed  upon  by  the  court.  We 
take  judicial  notice  of  Act  Xo.  12.5,  Ex.  Sess. 
1877.  That  act  has  not  been  repealed. 
Whether  or  not  it  has  become  inoperative 
by  reason  of  the  adoption  of  the  constitution 
Is  not  a  question  to  be  lightly  raised,  and  on 
general  indirect  allegations,  nor  to  be  raised 
by  the  court  itself.  This  statute  has  been 
constantly  acted  upon  by  the  executive  of  the 
state  since  1S80.  The  official  action  of  the 
head  of  the  executive  department  is  pre- 
sumed to  be  within  the  scope  of  his  authori- 
ty. This  presumption  is  sufficiently  strong, 
under  the  statute  cited,  to  entitle  a  person, 
who  has  qualified  as  a  statute  officer,  in  an 


office,  the  appointment  to  which  is  vested  in 
the  governor,  prima  facie  to  possession  of  the 
office.  If  he  is  to  be  kept  out  of  possession 
at  all,  it  must  be,  as  we  have  said,  under  ex- 
ceptional circumstances,  specially  set  forth, 
and  under  a  direct  issue  as  to  the  power  of  ' 
the  governor.  It  is  shown  in  this  case  that 
not  only  had  Kuhlman  been  appointed  and 
qualified  as  police  juror,  but  he  had  been  rec- 
ognized as  such  by  the  other  members  of 
the  jury,  and  that  together  they  had  organ- 
ized and  held  a  meeting  of  that  body.  Kuhl- 
man had  actually  gone  into  possession  of 
the  office,  and  the  allegation  that  Canibre 
feared  he  would  seek  to  take  forcible  posses- 
sion of  the  same  is  therefore  without  founda- 
tion. No  action  seems  to  have  been  taken 
by  the  jury  after  its  adjournment  until  the 
meeting  in  which  Kuhlman  participated; 
therefore  no  act  of  possession  of  the  office 
by  Cambre  is  shown  after  his  removal  by 
the  governor.  If  the  governor  had  the  pow- 
er to  remove  him,  there  was  no  necessity  for 
official  notification  to  him  of  the  removal  to 
bring  it  about.  The  removal  of  itself  operat- 
ed a  divestiture  of  the  office,  at  least  for  the 
purposes  of  this  suit.  Had  intermediate  ac- 
tion taken  place  before  notice,  in  which  Cam- 
bre had  participated,  in  ignorance  of  his  re- 
moval, and  were  the  validity  of  action  taken 
at  that  time,  and.  under  these  circumstances, 
contested,  a  different  question  would  arise. 
If  Cambre  was  removed  from  office,  he  was 
not  entitled  to  notice  of  a  called  meeting  of 
the  jury.  The  legality  of  the  police  juiy 
as  a  body  as  it  met  at  the  meeting  in  which 
Kuhlman  participated,  and  the  legality  of 
the  meeting,  cannot  be  collaterally  raised  or 
disposed  of  in  the  injunction  suit.  We  are 
of  the  opinion  that  the  district  judge,  in  tak- 
ing jurisdiction  in  the  matter  of  the  petition 
praying  for  an  injunction,  and  in  issuing  the 
injunction  he  did,  erred,  and  that,  when  the 
want  of  jurisdiction  was  called  to  his  atten- 
tion and  urged,  he  should  have  at  once  dis- 
charged the  injunction.  He  could  have  done 
so  of  his  own  motion.  There  was  no  neces- 
sity for  action  to  be  taken  contradictorily  with 
Cambre.  In  deciding  this  case  we  take  oc- 
casion to  refer  to  the  views  expressed  by  the 
supreme  court  of  Alabama  in  Beebe  v.  Rob- 
inson, 52  Ala.  6G,  and  to  the  case  of  Cameron 
V.  rarker  (Okl.)  38  Pac.  14  et  seq.  For  the 
reasons  herein  assigned,  it  is  hereby  ordered, 
adjudged,  and  decreed  that  the  writ  of  pro- 
hibition which  issued  in  this  matter  be  pei'- 
potnated.  and  that  the  injunction  granted  by 
the  district  judge  of  the  Twenty-First  judi- 
cial district  court  of  the  state  of  Louisiana 
for  the  parish  of  St.  Charles  in  the  matter  of 
L,  A.  Cambre  vs.  B.  J.  Kuhlman  (No.  SO  of 
the  docket  of  that  court)  be.  and  the  same  is 
hereby,  set  aside  and  discharged. 


56 


OFFICERS  AND  AGENTS  OF  PUBLIC  CORPORATIONS. 


STATE  ex  rel.   RENNER   v.   CURRY. 

(33  N.  E.  G85,  134  Ind.  133.) 

Supreme  Court  of  Indiana.     March  8,   1S93. 

Appeal  from  circuit  court,  Morgan  county; 
Eli  F.  Ritter,  Special  Judfie. 

Petition  for  mandamus,  brouglit  by  the  state 
on  the  relation  of  Charles  G.  Reuner  against 
Robert  Curry.  The  writ  was  refused,  aud  the 
relator  appeals.     Affirmed. 

W.  R.  Han-ison  and  C.  G.  Renner,  for  appel- 
lant.    Jordan  &  Mattliews,  for  appellee. 

OLDS,  J.  This  is  a  proceeding  in  manda- 
mus to  compel  the  appellee,  as  mayor  of  the 
city  of  Martinsville,  to  issue  an  order  to  the 
appellant's  relator  for  the  sum  of  $18,  allowed 
by  the  common  council  of  said  city  for  serv- 
ices rendered  by  the  relator  as  city  attorney. 
The  complaint  alleges  that  the  relator  is  the 
duly-elected  city  attorney  for  said  city,  and 
qualified  and  acting  as  such,  and  that  the  com- 
mon council  allowed  him  the  above-named 
sum  for  his  services,  and  the  appellee,  the 
mayor  of  said  city,  refused  on  demand  to  is- 
sue the  order  therefor,  and  asked  that  he  be 
compelled  to  issue  the  order.  The  appellee  an- 
swered in  three  paragraphs.  The  first  para- 
graph is  a  general  denial.  A  reply  was  filed 
to  the  other  two.  There  was  a  trial,  resulting 
in  a  finding  and  judgment  for  the  defendant. 
Appellant  filed  a  motion  for  new  trial,  which 
was  overruled,  and  exceptions  reserved.  Er- 
rors are  assigned  on  the  rulings  of  the  court 
in  overruling  demurrers  to  the  second  and 
third  paragraphs  of  answer,  overrulmg  the  mo- 
tion for  new  trial,  and  that  the  said  second 
and  third  paragi'aphs  of  answer  do  not  state 
facts  sufficient  to  constitute  a  defense. 

The  record  does  not  show  the  presenting 
and  overruling  of  demm-rers  to  the  second  and 
third  paragraphs  of  answer.  This  fact  is  con- 
ceded by  counsel  for  appellant,  but  it  is  sought 
to  question  the  sufficiency  of  the  answer  for 
the  first  time  in  this  court  by  an  assignment 
of  errors  that  said  paragraphs  of  answer  do 
not  state  facts  sufficient  to  constitute  a  de- 
fense to  relator's  petition.  That  the  sufficien- 
cy of  an  answer  cannot  be  first  questioned  in 
this  court  is  now  well  settled.  Railroad  Co. 
v.  Modesitt,  124  Ind.  212.  24  N.  E.  98(j.  See, 
also.  Elliott,  App.  Proc.  §§  47(5-4,81,  where  the 
question  is  fully  discussed,  and  authorities 
<f)llocted. 

This  leaves  for  our  consideration  only  the 
question  presented  by  the  motion  for  new  trial. 
After  this  suit  was  conmienced.  at  a  meeting 
of  the  common  council  of  the  city,  they  passed 
a  resolution  reciting  the  following  facts:  That 
the  relator  claimed  to  be  the  city  attorney,  and 
that  he  also  claimed  that  .Tames  H.  .Jordan, 
who  was  eleoted  city  attorney  of  said  city 
.Tune  1,  18SS.  was  removed;  that  the  circuit 
court  of  said  Morgan  county  had  held  that  said 
Jordan  was  not  removed;  that  it  created  con- 
fusion; that  it  be  and  was  declared  that  .said 
Jordan  was  the  only  legal   attorney  for  said 


city,  which  resolution  was  offered  by  the  ap- 
pellee, and  admitted  in  evidence  over  the  ob- 
jections and  exceptions  of  the  appellant.  And 
it  is  further  contended  that  the  finding  is  not 
supported  by  the  evidence,  and  is  contrary  to 
law.  Conceding,  without  deciding,  that  it  was 
error  to  admit  in  evidence  the  resolution  adopt- 
ed by  the  common  council  after  the  commence- 
ment of  this  suit,  we  will  consider  the  ques- 
tion as  to  whether  or  not  it  was  harmful,  and 
such  an  error  as  entitles  the  appellant  to  a 
reversal  of  the  judgment.  The  statute  (sec- 
tion 3043,  Rev.  St.  1881;  section  3476,  Rev. 
St.  1894)  creates  the  office  of  city  attorney  if 
the  common  council  deem  it  expedient,  amA 
provides  for  his  appointment  by  the  common 
council.  Section  3078,  Rev.  St.  1881  (section 
3513,  Rev.  St.  1894),  prescribes  his  duty,  and 
section  3095,  Rev.  St.  1881  (section  3530,  Rev. 
St.  1S94),  provides  for  his  taking  an  oath  and 
giving  a  bond.  The  city  attorney  is  appointed 
in  the  same  manner  as  the  street  commissioner 
and  the  civil  engineer,  and  he  becomes  an  offi- 
cer of  the  city  on  his  being  appointed  and  qual- 
ifying by  taking  the  oath  and  giving  bond  as 
prescribed  by  the  statute.  The  statute  con- 
templates and  makes  provision  for  only  one 
citj-  attorney,  and  provides  that  he,  like  the 
street  commissioner  and  civil  engineer,  shall 
hold  his  office  for  two  years,  subject  to  re- 
moval by  tlie  common  council  at  their  pleas- 
ure. Section  3043  (section  3476),  supra.  It 
is  evident  that  after  a  city  attorney  has  been 
elected,  and  he  has  qualified,  that  he  holds  his 
office  for  two  years,  unless  he  be  removed, 
and  until  he  is  removed  or  dies  or  resigns  there 
is  no  vacancy  which  can  be  filled  by  the  com- 
mon council.  In  other  words,  while  a  regu- 
larly appointed  and  qualified  city  attorney  con- 
tinues in  office,  the  common  council  have  no 
power  whatever  to  appoint  another,  for  no 
such  power  is  given  to  them  by  the  statute.] 
The  council  may  remove  at  their  pleasure,  and 
if  they  exercise  this  power  legally  the  office 
becomes  vacant,  and  they  may  then  appoint 
an  officer  to  fill  the  office;  but  until  they  do 
exercise  the  power  to  remove,  and  in  fact  re- 
move, the  legal  officer,  he  occupies  the  office, 
and  there  is  no  power  in  the  city  council  to 
appoint  another.  It  is  conceded  on  the  part 
of  tlie  ap])ellant,— and,  if  it  were  not  conced- 
ed, the  record  so  shows, — and  the  case  was 
prosecuted  and  proceeded  upon  the  theory,  that 
James  H.  Jordan  was  duly  appointed  city  at- 
torney on  the  1st  day  of  June,  1888,  and  that 
he  duly  qualified  and  acted  as  such;  but  It 
is  contended  that  on  July  19.  1889,  the  com- 
mon council  removed  him.  and  appointed  the 
relator  city  attorney,  and  the  evidence  shows 
that  fi-om  that  time  fonvard  there  was  a  dis- 
pute as  to  who  was  the  city  attorney;  .Tordan 
continuing  to  act  and  claiming  to  be  city  at- 
torney, and  the  relator  acting  when  called  up- 
on. It  appears  from  the  vote  on  the  resolu- 
tion hereinbefore  referred  to  that  the  council 
was  composed  of  10  members,  5  favoring  the 
relator  and  5  favoring  Jordan,  and  that  the 
mayor  favored  Jordan,  so  that  when  one  of 


REMOVAL  FROM  OFFICE. 


57 


either  faction  was  absent  from  a  meeting  the 
other  liail  a  majority  to  pass  resolutions  or  al- 
low claims  for  services.  In  Byer  v.  Town  of 
New  Castle,  124  Ind.  SG,  24  X.  E.  578,  it  is  held 
that  "the  only  competent  evidence  of  any  act 
or  proceeding  of  a  municipal  body  upon  which 
the  members  of  the  corporate  body  are  re- 
quired to  vote  is  the  record  of  the  proceed- 
ings." It  would  seem  that  this  doctrine  would 
apply  in  full  force  in  such  a  case  as  the  one 
at  bar,  where  the  action  of  the  common  coun- 
cil involved  the  election  or  removal  of  an  otti- 
cer.  By  section  3008,  Rev.  St.  1881  (section 
3o03,  Rev.  St.  1894),  it  is  made  the  duty  of  the 
city  clerk  to  attend  all  meetings  and  make  rec- 
ord of  all  proceedings  of  the  common  council. 
The  statute  clearly  contemplates  the  making 
of  a  record.  The  public  have  an  interest  in 
knowing  who  are  the  legally  elected  or  ap- 
pointed oflicei-s  of  the  city.  At  tile  meeting  of 
July  19,  ISSy,  there  was  a  record  made,  and 
it  Avas  put  in  evidence  in  this  case,  and  is  the 
only  record  or  evidence  of  any  character  re- 
lating to  the  question  of  removal  of  Jordan 
or  the  appointment  of  the  relator  as  city  attor- 
ney. The  record  of  this  meeting  shows  seven 
members  of  the  common  council  present,  nam- 
ing them,  and  thus  the  record  is  as  follows: 
"Journal  of  last  meeting  read  and  approved. 
The  following  resolution  was  introduced  and 
read,  to  wit:  Be  it  resolved  by  the  common 
council  of  the  city  of  Martinsville,  Ind.,  that 
J.  H.  Jordan  be  discharged  from  further  serv- 
ices as  city  attorney,  and  that  said  office  be, 
and  the  same  is  hereby,  declared  vacant.  A 
motion  was  made  by  Councilman  Miller  that 
the  vote  upon  the  above  resolution  be  by  bal- 
lot; those  in  favor  of  declaring  the  office  of 
city  attorney  vacant  voting  'Yes,'  those  op- 
posed voting  'No.'  The  roll  was  called,  result- 
ing as  follows:  Yeas:  Duncan,  Mabee,  Miller, 
and  Schnaeiter. — 4.  Nays:  MoCracken,  Max- 
well, and  Prewitt,— 3.  Motion  carried."  Then 
the  record  shows  that  the  council  proceeded 
to  ballot  for  a  city  attorney,  several  ballots  be- 
ing taken  without  a  choice.  Finally  the  re- 
lator received  4  of  the  7  votes.     The  record 


stating  the  last  ballot  and  adjournment  is  as 
follows:    "On  4  ballots  W.  S.  Shirley  received 
1  vote,  0.  G.  Renner  received  4  votes,  and  Jas. 
H.  Joi-dan  2  votes.     By  agreement  of  the  coun- 
cil the  matter  was  postponed  until  the  next 
regular  meeting.     Council  adjourned."     After- 
wards the  relator  filed  his  bond,  which   was 
approved  by  the  signatures  of  four  members 
of  the  council,  and  he  took  the  oath.     The  rec- 
ord of  the  meeting  held  July  19,  1889,   does  I 
not  show  that  any  vote  was  ever  taken  on  the/ 
resolution  to  remove  Jordan  and  declare  a  va-' 
cancy.     The  resolution  was  introduced,  and  at 
that  point  in  the  proceedings  Councilman  ^lil-  , 
ler  made  a  motion  that  the  vote  upon  the  reso-  j 
lution  be  by  ballot,  and  a  vote  was  taken  upon  / 
tlie  motion  of  Miller,  and  it  carried,  and  then  ' 
all   action   relating  to    resolution   or   removal 
ceased.     No  vote  was  ever  taken  bj'  ballot  or  1 
otherwise  on  the  resolution,  nor  was  any  other  I 
action  taken  in  relation  to  the  removal  of  Jor-  I 
dan;    hence  Jordan  was  not  removed,  and  no  I 
vacancy  was  created  or  declared  in  the  office  | 
of  city  attorney,  and  all  action  taken  towards 
electing  another  or  approving  his  bond  or  rec- 
ognizing him   as   the   city  attorney   by  some 
member  of  the  council  or  other  persons  was 
a  nuinty,  and  amounted  to  nothing.     Further-  > 
more,   the  record  does  not  show  an  election 
of  the  relator.     It  affirmatively  appears  that  \ 
immediately  after  the  fourth  ballot  was  taken 
the  matter  of  election  was  by  agreement  post-  \ 
poned,  and  no  election  was  ever  declared,  but, 
on  the  contrary,  was  by  agreement  postponed, 
and  never  taken  up  afterwards.     The  action  is 
to  compel  the  issuing  to  him  of  an  order  as 
city  attorney,  and  in  payment  of  his  salary  or 
compensation  for  his  services  as   such.     The 
record  is  conclusive  against  the  appellant,  and 
in  no  phase  of  the  case  was  he  entitled  to  re- 
cover, and  the  introduction  of  the  record  show- 
ing the  adoption  of  the   resolution  after  the 
commencement  of  this  suit,  though  erroneous, 
Avas  hannless.     The  finding  and  judgment  of 
the  court  was  proper  under  the  facts  in  the 
case,  and  there  is  no  error  in  the  record.    Judg- 
ment affirmed. 


\ 


58 


OFFICERS  AND  AGENTS  OF  TUBLIC  CORPORATIONS. 


STATE  ex  rel.   KEITH   et  al.  v.   COMMON 

COUNCIL  OF  MICHIGAN 

CITY  et  al. 

(37  N.  E.  1041,  138  Ind.  455.) 

Supreme  Court  of  Indiana.     June  21.  1894. 

Appeal  from  circuit  coui-t,  La  Porte  county; 
Daniel  Noyes,  Judge. 

Application  for  mandamus  by  the  state  of 
Indiana,  on  the  relation  of  George  Keith  and 
another.  From  a  judgment  sustaining  a  de- 
murrer to  the  petition,  plaintiffs  appeal.  Af- 
firmed. 

W.  B.  Biddle.  for  appellants.  Jas.  F.  Gal- 
laher,  for  appellees. 

DAILEY,  J.i        *  *  *  *  • 

There  is  another  view  of  the  question.  A 
]  large  part  of  the  argument  of  the  learned 
counsel  for  the  appi'llnnts  consists  of  an  ef- 
)  fort  to  eliminate  the  ordinance  from  the  con- 
tract, and  to  show  that  the  latter  must  stand 
'  alone,  xmaffectod  by  the  ordinance.  But  it 
I  appears  the  contract  has  more  need  of  the 
ordinance  than  the  ordinance  has  of  the  con- 
^  ti'act.  The  ordinance  is  the  act  of  the  com- 
mon council.  The  contract  is  an  agi'eement, 
executed  by  the  mayor  of  the  city,  acting  un- 
der its  instructions.  The  council  has  authori- 
ty to  order  street  improvements,  but  the 
mayor  is  vested  with  no  such  authority.  The 
petition  recites:  "On  the  11th  day  of  July. 
1S87,  the  said  council  authorized  the  mayor 
to  enter  into  a  contract  with  the  relator 
(Jeorge  Keith  to  construct  said  pavement; 
and  in  pm-suance  of  said  authority,  on  the 
liilh  day  of  July,  1S87,  William  F.  Woodson, 
wlio  was  then  the  mayor  of  said  city,  on  its 
behalf  entered  into  the  following  contract." 
The  return  of  the  city  states  "that  the  said 
contract  was  awarded  to  sjiid  relator  George 
Keith,  and  the  council  of  said  city  instructed 
AMlliam  F.  Woodson,  the  mayor  of  said  city, 
to  enter  into  contract  with  said  relator  Keith. 
and  that  on  the  12th  day  of  July,  1887,  said 
Woodson,  as  mayor  of  said  city,  did  enter 
into  a  contract  with  said  relator  Keith  for  the 
furnishing  all  materials  and  the  constructing 
said  improvement,  as  provided  for  in  said  or- 
dinance, plans,  and  specifications."  The  con- 
tract itself  says:  "In  witness  whereof,  the 
said  parties  of  the  first  part  have  executed 
this  agreement  by  the  mayor  of  said  city  of 
Michigan  City,  the  day  and  year  first  above 
written,  according  to  a  resolution  adopted 
by  the  common  council  of  said  city  July  11th, 
1SS7,  instructing  him  to  enter  into  such  con- 
tract with  said  parties  of  the  second  part." 
The  contract  is  signed  by  William  F.  AVood- 
son,  mayor  of  Michigan  City.  There  is  noth- 
ing in  the  record  alleging  that  this  contract 
was  ever  approved  by  the  common  council; 
so  that,  as  it  stands  here,  it  derives  its  sole 
claim  to  be  an  agi-eement  of  binding  force 
upon  the  city  from  the  authority  previously 

1  Part  of  the  opinion  is  omitted. 


conferred  upon  the  mayor  to  execute  it.  The 
mayor  of  a  city  cannot  give  a  contractor  a 
lien  upon  the  property  of  its  citizens.  Con- 
tracts made  by  him  have  no  more  binding 
foi'ce  against  the  city  than  have  those  of  a 
councilman.  In  the  signing  of  this  contract, 
the  mayor  was  acting  simply  as  the  instru- 
ment or  agent  of  the  council,  which  alone 
has  power  to  obUgate  the  city.  If,  then,  in 
aught  he  exceeded  or  varied  from  the  au- 
thority which  had  been  conferred  upon  him 
for  a  special  puri^ose,  his  action  to  that  ex- 
tent was  void  as  to  the  city,  and  the  con- 
tract became  the  contract  of  the  city  only  so 
far  as  it  complies  with  the  instructions  given 
to  the  mayor  by  the  council  when  he  was 
authorized  to  execute  it.  The  language  last 
quoted  from  the  i-eturn  leaves  no  room  for 
doubt  as  to  what  those  instructions  were 
which  were  given  to  the  mayor  by  the  coun- 
cil, and  which  were  his  only  warrant  for 
contracting  at  aU.  He  was  instructed  to 
enter  into  the  contract,  which  had  already 
been  awarded  to  the  appellants  by  the  ac- 
ceptance of  their  bid,  made  in  response  to  the 
publication  of  the  city.  "The  said  contract 
was  awarded  to  the  said  relator  Keith,  and 
the  common  council  instructed  William  F. 
Woodson,  mayor  of  said  city,  to  enter  into 
conti'act  with  said  relator  Keith."  All  of 
this  action  was  talcen  under  the  ordinance, 
and  it  certainly  could  not  be  claimed  with 
reason  that  the  mayor  was  authorized  by 
these  insti'uctions  to  enter  into  any  contract 
differing  from  the  ordinance  by  which  the 
work  was  ordered.  The  appellants  say  in 
their  petition:  "The  mayor  entered  into  the 
contract  in  pursuance  of  this  authority." 
Could  he,  in  pursuance  of  this  authority,  have 
bound  the  city  by  a  conti-act  providing  for  a 
pavement  of  brick,  instead  of  cedar  block, 
as  ordered  by  the  ordinance?  Could  he  have 
contracted  for  a  pavement  GO  feet  in  width, 
instead  of  541^  feet  in  width,  as  specified  in 
the  ordinance?  And,  if  he  had  so  contract- 
ed, would  the  com-t  order  the  assessment  of 
the  extra  cost  against  the  abutting  property? 
Certainly  not,  for  the  reason  that  his  autliui-i- 
ty  was  limitiMl  to  the  agi-eements  required  by 
this  ordinance,  and  for  the  further  reason 
that  the  foundation  for  no  other  contract 
had  been  laid  by  the  common  council.  The 
ordinance  is  the  pillar  which  supports  the 
contract.  According  to  the  record  before  us, 
it  is  the  only  action  taken  by  the  common 
council  as  a  body  authorizing  this  improve- 
ment or  justifj'ing  an  assessment,  and  no  ac- 
tion taken  by  any  person  or  any  other  body 
can  alter  its  specifications  or  amend  its  condi- 
tions. 

The  position  here  taken  is  only  a  part  of 
the  law  of  agency,  but  it  has  been  frequently 
applied  to  municipal  law  by  the  text-books 
on  that  subject.  In  Dillon  on  Municipal  Cor- 
porations {4th  Ed.  §  447)  the  author  says: 
"And  it  is  a  general  and  fundamental  prin-  | 
ciple  of  law  that  all  persons  contracting  with 
a  municipal  corporation  must,  at  their  peril,  I 


LIABILITY  ON  CONTRACT. 


5» 


/   inquire  into  the  power  of  the  corporation  or 
I    of  its  officors  to  malie  the  contract.    *    *    ♦ 
This  principle  is  more  strictly  applied,   and 
I    properly  so,  than  in  the  law  of  private  cor- 
^    poratious.     So,  also,  those  dealius  with  the 
I  agent  of  a  municipal  corporation  are  liliewise 
bound  to  ascertain  the  nature  and  extent  of 
his   authority.     Tliis    is   certainly    so    in    all 
f    cases  where  the  authority  is  special  and  of 
record,  or  conferred  by  statute."     Also,  from 
section  4r>2  of  the  same  work:    "Wh(>re  offi- 
cers or  a.ircnts  of  a  corporation,  duly  appoint- 
t  ed  and  act  in,;;  within  the  scope  of  their  au- 
(  thority,  sign  an  instrument,"  the  insti'ument 
I  Is  to  bo  i\';.,a:'aed  as  tlie  t:  tuple  contract  ol 
the  corpcnition.     Note  2  under  this  section: 
I  "The  genei'al  rule  is  unqtuestionable  that  a 
'  municipal  corporation  is  not  bound  by   the 
I  unauthorized  acts  of  an  individual,  wheth- 
,   er  an  oiucer  of  the  corporation  or  a  mere 
I   private  person."     Davies  v.   Mayor,  etc.,  93 
N.  Y.  250.      "Where  a  committee  was  em- 
powered  to   contract   for   the   erection   of   a 
building  at  a  price  not  to  exceed  a  specified 
sum,  it  was  held  that  they  had  no  power  to 
contract  for  a  larger  sum,  and  that  the  person 
contracting  with  them  was  bound  to  talve  no- 
tice of  the  extent  of  their  powers."     Turney 
V.  Town  of  Bridgeport,  55  Conn.  412,  12  Atl. 
520.     In  section  935  of  the  second  volume  of 


Dillon  on  Municipal  Corporations,  the  rule  is 
thus  stated:  "Nor,  as  we  have  before  stated,  i 
is  a  municipal  corporation  botmd  by  con- ' 
tract,  witliin  the  scope  of  its  chartered  pow-  i 
ers,  if  made  by  officers  or  agents  not  there-  / 
unto  authorized."  The  cases  cited  by  counsel 
for  the  appellants  in  this  branch  of  his  argu- 
ment are  not  at  all  opposed  to  the  doctrine 
stated.  In  Clements  v.  Lee,  114  Ind.  897, 
16  N.  E.  799,  it  is  held  that  a  person  about  to 
enter  into  a  contract  with  a  city  must  inform 
himself  as  to  the  jm-isdiction  of  the  council 
to  contract.  Taber  v.  Ferguson,  109  Ind.  227, 
9  N.  E.  723,  decides  that,  as  the  statute  does 
not  require  the  proof  of  notice  by  publication 
to  be  filed  with  the  clerli,  the  transcript  wiU 
not  be  held  bad  on  demurrer  for  want  of 
the  notice.  In  City  of  Indianapolis  v.  Imber- 
ry,  17  Ind.  175,  the  court  holds  that  it  is  not 
necessary  for  the  council  to  place  of  record 
its  determination  as  to  whether  or  not  the 
general  fimd  shall  bear  a  portion  of  the  cost 
of  the  improvement  We  thinli  these  deci- 
sions are  of  no  avail  in  determining  what 
contract  was  made  by  the  city,  and  what  are 
its  corporate  obligations  under  the  facts  set 
forth  in  the  retiu'n.2 


2  Part  of  the  opinion  is  omitted. 


60 


OFFICERS  AND  AGENTS  OF  PUBLIC  CORPORATIONSs 


TAYLOR  V.   CITY   OF   OWENSBORO. 

(32  S.  W.  94S.  9S  Ky.  271.) 

Court  of  Appeals  of  Kentucky.     Nov.  16,  1895. 

Appeal  from  circuit  court,  Daviess  county. 

"To  be  officially  reported." 

Action  by  Ashby  Taylor  against  the  city 
of  Owensboro  to  recover  daniaj^es  for  an  al- 
leged wrongful  arrest.  Defendant  had  judg- 
ment, and  plaintiff  appeals.     Affirmed. 

John  Feland  &  Son,  for  appellant.  J.  D. 
Atchison,  for  appellee. 


PAYNTER,  J.  The  appellant  instituted 
action  against  the  cit.v  of  Oweusboro,  seek- 
ing to  recover  damages  for  an  alleged  wrong- 
ful arrest,  conviction,  and  confinement  in  the 
workhouse  of  the  city.  It  is  alleged  in  the 
petition,  in  substance,  that  C.  N.  Pendleton 
is  the  judge  of  the  police  court  of  the  city 
of  Owensboro;  that,  as  such  officer,  he  is- 
sued a  warrant  against  appellant,  charging 
him  with  violating  an  ordinance  of  the  city 
of  Owensboro  denouncing  a  penalty  for  a 
breach  of  the  peace;  that,  by  virtue  of  the 
warrant,  the  city  marshal  arrested  him,  and 
carried  him  before  the  police  court,  where 
he  was  tried,  convicted  of  a  breach  of  the 
peace,  and  adjudged  that  the  city  of  Owens- 
l>oro  recover  of  him  $100  and  costs,  and,  fail- 
ing to  pay  which,  he  was  confined  in  the 
workhouse  of  the  city  for  some  time.  It  is 
also  alleged  that  the  proceedings  were  un- 
der an  ordinance  which  reads  as  follows,  to 
wit:  "Any  person  or  persons  who  shall  with- 
in the  city  of  Owensboro  be  guilty  of  a  riot, 
rout,  unlawful  assembly  or  breach  of  the 
peace  shall  upon  conviction  be  fined  not  less 
than  ten  nor  more  than  one  hundred  dol- 
lars." It  is  insisted  that  the  ordinance  un- 
der which  the  pi-osecution  took  place  is  un- 
constitutional and  void,  and  therefore  appel- 
lant is  entitled  to  recover  damages  of  the 
city.  A  demurrer  was  sustained  to  the  pe- 
tition, and,  appellant  failing  to  amend,  his 
petition  was  dismissed.  Section  12GS,  St. 
Ky..  is  as  follows:  "If  any  person  or  persons 
shall  be  guilty  of  a  breach  of  the  peace 
*  *  *  the  person  so  offending  and  each  of 
them  shall  be  fined  not  less  than  one  cent 
nor  more  than  one  hundred  dollars  or  im- 
prisonment not  less  than  five  nor  more  than 
fifty  days  or  both  so  fined  and  imprisoned." 
By  the  terms  of  the  ordinance  the  fine  for 
a  breach  of  the  peace  cannot  be  less  than 
$10,  nor  more  than  $100,  and  Imprisonment 
is  not  part  of  the  penalty,  while,  under  the 
statute,  for  a  breach  of  the  peace,  the  min- 
imum fine  is  1  cent,  and  the  maximum  fine 
$100,  and,  in  addition  to  which,  imprison- 
ment for  not  less  than  5,  nor  more  than  50, 
days  may  be  inflicted.  It  will  therefore  be 
observed  that  the  penalty  for  a  breach  of 
the  peace  under  the  ordinance  is  much  less 
than  the  one  denounced  in  the  statute.  Sec- 
tion 1G8  of  the  constitution  is  as  follows: 


"No  municipal  ordinance  shall  fix  a  penalty 
for  a  violation  thereof  at  less  than  that  im- 
posed by  statute  for  the  same  offense.  A 
conviction  or  acquittal  under  either  shall 
constitute  a  bar  to  another  prosecution  for 
the  same  ofTense."  The  penalty  for  a  breach 
of  the  peace  under  the  ordinance  being  less 
than  the  one  imposed  by  statute,  the  ordi- 
nance is  in  violation  of  the  constitution,  and 
void.  Under  subsections  22,  23,  §  3290,  St. 
Ky.,  the  common  council  of  cities  of  the  third 
class  have  the  power,  within  the  limits  of 
the  constitution  of  this  state  and  the  act  re- 
lating to  cities  of  that  class,  to  pass  ordi- 
nances imposing  fines  and  imprisonment  for 
the  violation  of  ordinances  and  by-laws, 
breaches  of  the  peace,  etc.  The  ordinance 
imposing  a  fine  for  a  breach  of  the  peace  be- 
ing void,  the  statute  remained  as  if  no  ac- 
tion whatever  had  been  taken  by  the  com- 
mon council.  There  was  a  statute  in  force 
under  which  both  fine  and  imprisonment 
could  be  imposed  for  a  breach  of  the  peace 
in  the  city  of  Owensboro.  The  judge  of  the 
police  court  of  that  city  had  jurisdiction  to 
try  persons  charged  with  that  offense.  A 
warrant  was  issued,  charging  the  appellant 
with  the  offense  of  a  breach  of  the  peace, 
under  which  he  was  arrested,  tried,  and  con- 
victed. It  is  alleged  in  the  petition  he  was 
required  to  answer  "the  charge  of  violating 
city  ordinance  3,  breach  of  the  peace  in  said 
city."  We  understand  this  to  mean  that  ap- 
pellant was  charged  with  the  offense  of  a 
breach  of  the  peace.  Although  he  was  char- 
ged with  violating  the  ordinance,  yet  the 
gravamen  was  a  breach  of  the  peace.  The 
judge  and  the  marshal  may  have  proceeded 
to,  and  did,  prosecute  the  appellant  iiuder 
charge  of  a  breach  of  the  peace,  believing 
the  ordinance  in  question  to  be  in  force,  and 
imposed  the  fine,  yet  it  was  not  in  force,  but 
a  statute  was,  which  authorized  the  imposi- 
tion of  the  fine  for  a  breach  of  the  peace. 
The  jurisdiction  of  the  court  existed,  with 
ample  power  to  try  and  convict  the  accused 
on  the  charge  of  a  breach  of  the  peace,  if 
proven  guilty;  and,  although  the  judge  may 
have  labored  under  the  erroneous  impression 
that  the  ordinance  was  in  force,  yet,  having 
imposed  such  fine  as  he  had  authority  to  do 
by  statute,  his  judgment  was  not  void,  and 
appellant's  imprisonment  under  it  illegal.  A 
judgment  maj-  be  right,  still  the  court  may 
have  given  a  very  insufficient  or  erroneous 
reason  for  it.  The  warrant  may  have  cou- 
pled with  the  charge  of  a  breach  of  the 
peace  the  fact  that  it  was  in  violation  of  a 
void  ordinance;  still  the  warrant  would  be 
valid,  because,  by  statute,  a  penalty  is  de- 
nounced for  the  breach  of  the  peace.  While 
tlie  warrant  may  not  have  been  in  exact 
form  as  the  charge  and  the  law,  still  the 
court  had  jurisdiction  of  the  matter. 

The  appellant  could  have  raised  any  ob- 
jection he  saw  proper  to  the  warrant.  He 
was  in  court,  pleaded  not  guilty,  and  pro- 
ceeded in  the  tiial,   so  far  as  the  petition 


LIABILITY  FOR  TORTS  OF  AGENTS. 


63 


shows,  without  raising  any  question  as  to 
the  form  of  tlie  warrant,  or  manner  of  stat- 
ing the  charge  against  him;  and,  as  the 
court  had  jurisdiction  to  try  the  case,  the 
only  remedy  which  appellant  had  was  by  ap- 
peal from  the  judgment  of  conviction.  Had 
there  been  no  statute  imposing  a  fine,  etc., 
for  a  breach  of  the  peace,  then  the  question 
as  to  the  effect  of  such  judgment  would  be 
a  different  question  from  the  one  presented 
In  this  case.  However,  that  would  not  af- 
fect the  question  as  to  the  liability  of  the 
city.  Municipal  governments  are  auxilia- 
ries of  the  state  government.  They  are 
created  principally  to  aid  in  securing  a  prop- 
er government  of  the  people,  within  the 
boundaries  of  such  municipality,  and  to 
make  moi-e  effectual  the  maintenance  of  the 
public  order.  The  judges  of  the»  police 
courts,  as  well  as  the  marshal  of  municipali- 
ties, are  officers  of  the  commonwealth  and 
their  respective  municipalities,  although 
their  duties  might  be  confined  to  the  en- 
forcement of  the  law  within  a  specified  ter- 
ritory. The  marshals  of  such  cities  are  de- 
claimed to  be  peace  officers  of  the  cities  and 
commonwealth.  St.  Ky.  §  3.341.  A  breach 
of  the  peace  is  a  public  offense.  It  is  an 
offense  against  the  commonwealth.  Tlie  gen- 
eral assembly  has  so  declared  it  to  be.  While 
the  general  assembly  has  conferred  authority 
upon  the  common  councils  of  cities  of  the 
third  class  to  impose  a  penalty  on  those  who 
may  be  guilty  of  it  within  certain  limits, 
still  the  offense  remains  a  public  one,  and 
against  the  commonwealth.  The  evident 
purpose  of  the  constitutional  convention  and 
the  general  assembly  was  to  make  more 
certain  and  effective  the  prosecution  of  the 
persons  who  might  be  guilty  of  such  of- 
fenses, by  conferring  upon  those  immediate- 
ly affected  by  such  violation  of  the  law  the 
authority  to  enforce  the  law,  and  inflict 
punishments  for  its  violation;  but,  that 
proper  penalties  should  be  imposed  under 
municipal  ordinances,  the  constitution  pro- 
hibits prescribing  by  an  ordinance  a  less 
penalty  than  that  fixed  by  statute  for  the 
offense.  That  one  charged  with  such  of- 
fenses as  were  denounced  by  statute  and 
by  a  municipal  ordinance  should  be  put  in 
jeopardy  but  once,  the  constitution  declared 
a  conviction  or  acquittal  under  one  should 
constitute  a  bar  to  another  prosecution  for 
the  same  offense.  A  municipal  corporation 
is  not  liable  for  the  acts  of  its  officers  in  en- 
forcing the  criminal  or  penal  laws  of  the 
commonwealth,  or  in  enforcing  penal  ordi- 
nances of  the  city.  The  maxim  respondeat 
superior  has  no  application.  It  is  said  in 
Dill.  Muii.  Corp.  §§  1)74,  975:  "It  may  be  ob- 
served, in  the  nexF^lace."  that  when  it  is 
sought  to  render  a  municipal  corporation 
liable  for  the  act  of  servants  or  agents,  a 
cardinal  inquiry  is  whether  they  are  the 
servants  or  agents  of  the  corporation.  If 
the  corporation  ai)points  or  elects  them,  can 
control  them  in  the  discharge  of  their   du- 


ties, can  continue  or  remove  them,  can  hold 
them  responsible  for  the  manner  in  which 
they  discharge  their  trust,  and  if  those  du- 
ties relate  to  the  exercise  of  corporate  pow- 
ers, and  are  for  the  peculiar  benefit  of  the 
corporation,  in  its  local  or  special  interest, 
they  may  be  justly  regarded  as  its  agents 
or  servants,  and  the  maxim  of  respondeat 
superior  applies.  But  if,  on  the  other  hand, 
they  are  elected  or  appointed  by  the  corpo- 
ration, in  obedience  to  the  statute,  to  per- 
form a  public  service,  not  peculiarly  local 
or  corporate,  but  because  this  mode  of  se- 
lection has  been  deemed  expedient  by  the 
legislature  in  the  distribution  of  the  powers 
of  the  government,  if  they  are  independent 
of  the  corporation  as  to  the  terms  of  their 
office,  and  the  manner  of  discharging  their 
duties,  they  are  not  to  be  regarded  as  the 
servants  or  agents  of  the  corporation,  for 
whose  acts  or  negligence  it  is  impliedly  lia- 
ble, but  as  public  or  state  officers,  with  such 
powers  and  duties  as  the  statute  confers 
upon  them,  and  the  doctrine  of  respondeat 
superior  is  not  applicable.  It  will  thus  be 
seen,  on  general  principles,  it  is  necessary, 
in  order  to  make  a  municipal  corporation 
impliedly  liable,  on  the  maxim  of  respondeat 
superior,  for  the  wrongful  act  or  neglect  of 
an  officer,  that  it  be  shown  that  the  officer 
was  its  officer,  either  generally,  or  as  re- 
spects the  particular  wrong  complained  of, 
and  not  an  independent  public  officer;  and, 
also,  that  the  wrong  was  done  by  such  offi- 
cer while  in  the  legitimate  exercise  of  some 
duty  of  a  corporate  nature,  which  was  de- 
volved on  him  by  law,  or  by  the  direction 
or  authority  of  the  corporation.  Agreeably 
to  the  principles  just  mentioned,  police  offi- 
cers appointed  by  a  city  are  not  its  agents 
or  servants,  so  as  to  render  it  responsible 
for  their  unlawful  or  negligent  acts  in  the 
discharge  of  their  duties;  and,  accordingly, 
a  citj'  is  not  liable  for  an  assault  or  battery 
committed  by  its  police  officei's,  though  done 
in  an  attempt  to  enforce  an  ordinance  of 
the  city,  or  for  an  an-est  made  by  them 
which  is  illegal,  for  want  of  a  warrant,  or 
for  other  causes,  or  for  their  unlawful  acts 
of  violence,  whereby,  in  the  exercise  of  their 
duty  of  suppressing  an  unlawful  assem- 
blage of  slaves,  the  plaintiff's  slave  was 
killed.  So,  on  the  same  principle,  a  person 
who  suffers  a  personal  injury  while  aiding 
the  police  officers  of  a  city,  at  their  request, 
in  arresting  disturbers  of  the  public  peace 
under  a  valid  ordinance,  has  no  remedy 
against  the  city.  The  municipal  corporation, 
in  all  these  and  the  like  cases,  represents 
the  state  or  the  public,  the  police  officers 
are  not  the  sei-vants  of  the  corporation,  the 
principle  of  respondeat  superior  does  not  ap- 
ply, and  the  corporation  is  not  liable,  un- 
less by  virtue  of  a  statute  expressly  creat- 
ing the  liability."  The  principle  enumerat- 
ed by  Mr.  Dillon  is  sustained  by  almost  an 
unbroken  line  of  decisions  of  the  courts  of 
this  country,  and  by  this  court  in  the  cases 


62 


OE^ICERS  AND  AGENTS  OF  PUBLIC  CORPORATIONS. 


of  Pollock's  Adm'r 
221;    Jolly's  Adm'r 


V.  Louisville,  13  Bush, 
V.  City  of  Hawesville, 
89  Ky.  279,  12  S.  W.  313;  Prather  v.  Lexing- 
ton, 13  B.  Mon.  559.  Tlie  cases  rest  on  the 
ground    that    municipalities    represent    the 


commonwealth,  and  municipal  officers, 
while  engaged  in  duties  relating  to  the  pub- 
lic safety,  and  in  the  maintenance  of  pub- 
lic order,  are  the  servants  of  the  common- 
wealth.   The  judgment  is  affirmed. 


LlAlilLlTY  i'OK  TOUTS  OF  AGEXTS. 


63 


HORTON  V.  NEWELL,  City  Treasurer. 

(23  Atl.  910,  17  R.  I.  571.) 

Supreme  Court  of  Rhmle  Island.      Jan.  2,  1S92. 

Exceptions  to  court  of  common  pleas. 

This  was  an  action  of  trespass  on  the  case, 
brought  by  Daniel  H.  Hortou  against  George 
W.  Newell,  city  treasurer  of  the  city  of  Paw- 
tucket,  to  recover  damages  for  an  alleged 
malicious  suit  brought  by  the  tax  collector  of 
the  city  against  the  plaintitf.  From  a  judg- 
ment sustaining  a  demurrer  to  the  declara- 
tion plaintiff  excepts.     Affirmed. 

Jacob  W.  Mathewson,  for  plaintiff.  Thom- 
as P.  Barnefield.  City  Sol.,  for  defendant. 

PER  CURLIM.  A  municipal  corporation 
is  not  liable  for  the  acts  of  its  officers,  un- 
less previously  authorized  or  subsequently 
ratified  by  it,  or  unless  done  in  good  faith 
in  pursuance  of  a  general  authority  to  act 


for  the  city  in  tlie  matter  to  which  they  re-  f 
late.     Donnelly  v.  Tripp,  12  R.  I.  97,  98.    The , 
declaration  does  not  allege  that  the  city  of  / 
Pawtucket  authorized  the  suit  by  Newell  in  ' 
his  capacity  as  tax  collector,  complained  of  / 
as  malicious,  or  that  it  has  even  ratified  the  ' 
bringing  of  the  suit.      If  it  was  maliciously  i 
brought  by  Newell,  it  was  not  brought  in  f 
good  faith,  which  is  essential  to  render  the 
city  liable  as  for  an  act  done  in  pursuance  of  / 
a  general  authority  to  act  for  it,  under  the  ' 
rule  stated  above.     The  demurrer  was  there-  / 
fore  properly  sustained.      We  presume  that ' 
NcAvell,  in  bringing  the  suit,  acted  not  under 
authority  from  the  city  of  Pawtucket,  but  in 
pursuance  of  the  statutory  authority  confer 
red  on  him  as  tax  collector  by  Pub.  St.  R.  I. 
c.  44,  §  26.      If  so,  it  is  difficult  to  see  how  | 
the  city  of  Pawtucket  is  liable.     Exceptions 
overruled,    and   judgment   of   the    court   of 
common  pleas  affirmed,  with  costs. 


64 


OFFICERS  AND  AGENTS  OF  PUBLIC  CORPORATIONS. 


RYCE  V.  CITY  OF  OSAGE. 

(55  N.  W.  532,  8S  Iowa,  558.) 

Suprem-?  Court  of  Iowa.      May  25.  1893. 

Appeal  from  district  court,  Mitchell  county; 
G.  W.  Ruddiclv,  Judge. 

Action  against  the  defendant  for  compensa^ 
tion  for  services  as  an  attorney.  Judgment 
for  defendant.    Plaintiff  appeals. 

Li.  M.  Ryce,  pro  se.  N.  L.  Rood,  for  appel- 
lee. 

KIXNE,  J.  1.  Plaintiff's  cause  of  action  is 
set  out  in  three  ct)unts,  and  may  be  smuma- 
rized  as  follows:  In  1881),  plaintiff  was  elect- 
ed as  city  attorney  for  defendant  for  the 
term  of  two  years,  and  aftei-wards  entered 
upon  his  duties.  At  the  time  of  his  election, 
as  weU  as  when  he  performed  the  services 
sued  for  in  this  action,  there  was  an  ordi- 
nance in  force  in  said  city,  section  5  of  which 
provided  as  foUows:  "The  duties  of  the  city 
solicitor  shaU  be  to  give  his  legal  opinion  and 
advice  upon  any  subject  or  question  that 
may  be  submitted  to  him  for  that  puriwse  by 
the  city  council  or  mayor,  to  act  as  attoraey 
for  the  city  in  any  suit  or  action  brought  by 
or  against  the  city,  and  generally  to  attend  to 
the  interests  of  the  city,  as  its  attorney;  and 
his  compensation  therefor  shall  be  the  sum  of 
$100  per  year."  When  he  entered  upon  his 
office,  a  suit  was  pending  against  the  city, 
which  had  been  brought  by  one  Smith,  to 
quiet  the  title  to  a  tract  of  laud  therein 
lmo^vn  as  a  "pubhc  square."  One  Coffin  was, 
prior  to  plaintil'fs  taking  the  office  of  city  at- 
tomej',  conducting  said  suit  under  special  con- 
tract with  tlie  city.  When  plaintiff  entered 
upon  the  duties  of  his  office,  he  claims  it  was 
the  understanding  and  agi'oement  between 
him  and  the  council  of  the  defendant  that  he 
should  take  charge  of  and  defend  said  suit  in 
the  district  and  supreme  courts,  and  the  city 
would  pay  him  therefor  in  addition  to  his  sal- 
ary as  city  attorney.  He  did  so,  and  present- 
ed his  bill  to  the  council,  and  it  was  not  al- 
lowed. That  the  city  paid  him  $200,  being, 
as  they  claimed,  his  salary  for  tlie  two  years 
as  city  attorney.  That  the  services  he  ren- 
dered in  the  defense  of  said  suit  were  not 
included  within  his  official  duties  as  city  at- 
torney, and  that,  as  said  officer,  he  was  in  no 
event  bound  to  defend  said  suit  in  the  su- 
preme court.  That  the  city  council,  in  1886, 
by  a  resolution  repealed  said  ordmance  by  fix- 
ing the  salary  of  the  citj'  attorney  at  $25,  and 
such  further  compensation  as  they  might 
deem  just  and  equitable.  That  the  defendant, 
having  treated  said  ordinance  as  repealed,  is 
now  estopped  from  claiming  it  to  be  in  force. 
Tliat  defendant  city  demurred  to  the  petition 
on  the  ground  that  tlie  labor  claimed  to  have 
been  performed  by  the  plaintiff  was  a  part 
of  the  duties  which  pertained  to  his  office, 
and,  his  salary  as  city  attorney  being  fixed  by 
an  ordinance,  neither  the  coimcil  nor  any  of 


its  members  had  the  power  to  make  the  al- 
leged contract,  and  to  bind  the  city  thereby. 
That  the  facts  set  up,  and  claimed  to  amoimt 
to  a  repeal  of  said  ordinance,  were  ineffectual 
to  accomphsh  that  end.  The  demurrer  was 
sustained,  and,  plaintiff  electing  to  stand  up- 
on his  petition,  and  refusing  to  plead  further, 
judgment  was  entered  against  him  for  costs, 
and  his  action  dismissed. 

2.  The  appeal  presents  the  single  question 
of  the  correctness  of  the  ruling  of  the  trial 
court  in  sustaining  the  demuiTer.  It  is  urged 
that  the  services  rendered  were  not,  even  by 
the  terms  of  tlie  ordinance,  included  within 
the  plaintiff's  duty  as  city  attorney.  It  seems 
to  us  that  a  mere  reaumg  of  that  section  of 
the  ordinance  which  prescribes  the  duties  of 
the  city  attorney  is  sufficient  to  sliow  that 
under  it  he  was  required  to  act  for  the  city, 
as  its  attorney,  in  any  case  brought  by  or 
against  it;  and,  if  that  is  not  broad  enough, 
tlie  further  reqmrement  certainly  woifid  be 
that  he  is  "generally  to  attend  to  the  inter- 
ests of  the  city,  as  its  attorney."  That  the  ' 
services  rendered  by  the  plaintiff,  and  for 
which  he  now  seeks  to  recover,  were  includ- 
ed within  his  duties  as  city  attorney,  is  too  , 
plain  to  admit  of  argument. 

3.  It  is  claimed  that  tlus  provision  of  the 
ordinance  was  repealed,  or  rendered  inopera- 
tive, because  the  councd,  several  years  after 
its  enactment,  by  a  resolution  fixed,  or  rather 
undertook  to  fix,  the  compensation  of  the  city 
attorney  at  $25  per  j-ear,  and  hence  it  is  said 
that  the  city  is  now  estopped  from  relying 
upon  the  ordinance.  The  statute  provides  the 
manner  in  wliicli  ordinances  shall  be  passed. 
When  legally  passed,  if  not  in  conffict  with 
constitutional  or  statutory  provisions,  an  or- 
dinance will  remain  in  force  until  repealed  or 
amended  in  a  legal  manner.  We  need  not 
stop  to  argue  the  self-evident  proposition  that 
an  ordinance  cannot  be  repealed,  or  rendered 
ineffective  or  inoperative,  by  a  failure  to  en- 
force it.  Nor  can  an  ordinance  be  repealed 
or  superseded  by  the  passage  of  a  resolution 
which  undertakes  to  fix  another  and  different 
compensation  for  a  city  officer  than  that  pre- 
scribed in  the  ordinance. 

4.  Furthermore,  the  passage  of  the  resolu- 
tion, even  if  it  shoidd  be  conceded  to  work 
a  repeal  of  tlie  ordinance,  would  not  avail 
plaintiff.  Our  statute  provides,  as  to  officers 
of  cities  and  incoi^porated  towns,  that  "the 
emoluments  of  no  officer  whose  election  or 
appointment  is  required  by  this  chapter  shall 
be  increased  or  diminished  during  the  term 
for  which  he  shall  have  been  elected  or  ap- 
pointed." Code,  §  491.  This  statute  has 
been  construed  to  prohibit  the  city  coun- 
cil from,  on  its  own  motion,  changing  the 
compensation  of  a  city  ollicer,  or  from  ac- 
complislung  the  same  end  by  making  a  con- 
tract with  the  officer  for  compensation  other 
than  that  fixed  by  the  ordinance.  Purdy  v. 
City  of  Independence,  75  Iowa,  359,  39  N. 
W.  Rep.  <;41.  See  City  of  Coimcil  Bluffs  v. 
Waterman,  (Iowa,)  53  N.  W.  Rep.  289,  and 


RIGHTS  OF  PUBLIC  OFFICIAL  TO  COMPENSATION. 


65 


/  cases  there  cited.  The  council  could  not, 
even  by  repealing  the  ordinance  and  passing 
a  new  one,  affect  the  compensation  to  be 
paid  to  plaintiff  as  city  attorney  during  the 

1  term  for  which  he  was  elected. 

5.  It  is  said  that  tlie  citj',  having  bad  the 
/  benefit    of    plaintiff's    services,    which    were 

rendered  under  a  verbal  contract  made 
I  with  its  council  to  pay  tlierefor  a  sum  in 
'  excess  of  his  salary  as  city  attorney,  is  now 
estopped  from  pleading  or  relying  upon  the 
I  ordinance  which  fixed  his  compensation.  In 
support  of  this  claim  a  large  number  of 
cases  are  cited.  They  are  either  cases  which 
i  concerned  private  corporations,  and  parties 
contracting  witli  them  in  good  faith,  where 
I  the  corporation  has  bad  the  full  benefit  aris- 
ing from  the  performance  of  the  contract, 
and  sought  to  avoid  it,  or  cases  where  mu- 
nicipal corporations  have  conti-acted  with 
strangers  for  gas,  grading,  or  other  proper 
public  improvements,  and  received  all  the 
benefit  flowing  therefrom.  Surely,  sucb 
cases  are  not  authority  for  holdmg  that  a 
city,  after  fixing  the  salary  of  its  officer  in 
a  legal  manner,  may  enter  into  an  arrange- 
ment with  him  whereby  he  may  obtiiin  ad- 
ditional compensation  for  services  embraced 
within  the  duties  of  his  office.  Such  a  con- 
tract is  against  public  policy,  and  void.  Van- 
dercook  v.  Williams,  106  Ind.  345,  1  N.  E. 
Rep.  619,  and  S  N.  E.  Rep.  113. 

6.  When  plaintiff  made  the  verbal  contract 
I  with  the  defendant,  vmder  which  he  seeks 
'  to  recover  in  this  action,  he  knew,  or  was 
I  bound  to  know,  that  the  services  he  would 
'  be  called  upon  to  render  thereunder  were 
I  included  in  his  duties  as  city  attorney,  and 
I  that  the  salaiy  of  said  office  was  fixed  by 

ordinance  at  $100  per  year.  No  rule  is 
better  established  than  that  "a  person  ac- 
cepting a  public  office,  with  a  fixed  salary, 
is  bound  to  perform  the  duties  of  the  office 
for  the  salary."  1  DiU.  Mun.  Corp.  §  233, 
and  note;  Fawcett  v.  Woodbury  Co.,  5.3 
Iowa,  154,  7  N.  W.  Rep.  483;  Purdy  v.  City  of 
Independence,  75  Iowa,  358,  39  N.  W.  Rep. 
641;  City  of  CoimcU  Bluffs  v.  Watennan, 
(Iowa,)  53  N.  W.  Rep.  289;  Bayba  v.  Web- 
ABB.C0RP.-5 


ster  Co.,  18  Neb.  131,  24  N.  W.  Rep.  457; 
State  V.  Silver,  9  Neb.  88,  2  N.  W.  Rep.  215; 
Evans  v.  City  of  Trenton,  24  N.  J.  Law, 
764;  Com.  v.  Holmes,  25  Grat.  771;  Turpen 
V.  Board,  7  Ind.  172;  Territory  v.  Carson, 
7  Mont.  417,  16  Pac.  Rep.  572;  Ilays  v.  City 
of  Oil  City,  (Pa.  Sup.)  11  Atl.  Rep.  63;  19 
Amer.  &  Eng.  Enc.  Law,  p.  529.  And  a 
promise  to  pay  a  city  attorney  "an  extra 
fee  or  sum  beyond  that  fixed  by  law  is  not 
binding,  although  he  rendere  services,  and 
exercises  a  degree  of  diligence  greater  than 
could  legally  have  been  required  of  him."  1 
Dill.  Mun.  Corp.  §  234;  Carroll  v.  City  of  St 
Louis,  12  Mo.  444;  City  of  Detroit  v.  Whitte- 
more,  27  Mich.  281;  19  Amer.  &  Eng.  Enc. 
Law,  pp.  529,  530;  Hays  v.  City  of  OH  City, 
(Pa,  Sup.)  11  Atl.  Rep.  63;  Territory  v.  Car- 
son, 7  Mont.  417,  16  Pac.  Rep.  572.  And  it 
has  often  been  held  that  a  pajment  to  a 
pubUc  officer  of  a  sum  in  excess  of  that 
fixed  by  law  for  his  compensation  is  tmau- 
thorized  and  void.  Adams  Co.  v.  Himter, 
78  Iowa,  328,  43  N.  W.  Rep.  208;  Fawcett 
V.  Woodbury  Co.,  55  Iowa,  154,  7  N.  W.  Rep. 
483;  Fawcett  v.  Eberly,  58  Iowa,  544,  12 
N.  W.  Rep.  580;  Griffin  v.  County  of  Clay, 
63  Iowa,  413,  19  N.  W.  Rep.  327;  City  of 
CouncU  Bluffs  v.  Waterman,  (Iowa,)  53  N. 
W.  Rep.  289.  As  is  well  said  by  Judge  Dil- 
lon in  his  excellent  worlc  on  Municipal  Cor- 
porations, (volume  1,  §  233:)  "To  allow  chan- 
ges and  additions  in  the  duties  prop- 
erly belonging,  or  which  may  properly  be 
attached,  to  an  office,  to  lay  the  foimdation 
for  extra  compensation,  would  soon  intro- 
duce intolerable  mischief,  lue  rule,  too, 
shoidd  be  very  rigidly  enfoi'ced.  The  stat- 
utes of  the  legislature  and  the  ordinances 
of  our  municipal  coi^porations  seldom  pre- 
scribe with  much  detaU  and  particidarity 
the  duties  annexed  to  public  offices,  and  it 
requires  but  little  ingenuity  to  run  nice  dis- 
tuictions  between  what  duties  may,  and 
what  may  not,  be  considei'ed  strictly  official; 
and,  if  these  distinctions  are  much  favored 
by  com-ts  of  justice,  it  may  lead  to  great 
abuse."  The  demmrer  was  properly  sus- 
tained, and  the  judgment  below  is  affirmed. 


66 


OFFICERS  AND  AGENTS  OF  PUBLIC  CORPORATIONS. 


SPEED  V.  COMMON  COUNCIL  OF  CITY  OF 
DETROIT  et  al. 

(58  N.  W.  638,  100  Mich.  92.) 

Supreme  Court  of  Michigan.     April  10,  1894. 

Certiorari  to  circuit  court,  Wayne  county; 
Geori^e  S.  Hosmer,  Judge. 

Mandamus,  on  the  relation  of  John  J. 
Speed,  a.i;ainst  the  common  council  and 
comptroller  of  the  city  of  Detroit,  to  compel 
the  payment  of  relator's  salary.  From  an 
order  granting  the  writ,  respondents  bring 
certiorari.    Affirmed. 

Atkinson  &  Haigh  (Philip  T.  Van  Zile,  of 
counsel),  for  appellants.  John  D.  Conely  and 
Hoyt  Post,  for  appellee. 

/  PER  CURIAM.  This  is  certiorari  to  re- 
view an  order  of  the  circuit  com't  directing 
the  payment  of  relator's  salary,  under  Act 
No.  419  of  the  Local  Acts  of  1893.  Four 
questions  are  raised: 

1.  Is  mandamus  the  proper  remedy?  This 
point  is  ruled  by  McBride  v.  Grand  Rapids, 
47  Mich.  236,  10  N.  W.  353. 

2.  The  answer  sets  up  that  the  general 
fund  out  of  which  salaries  are  usually  pay- 
able is  overdrawn,  in  the  sum  of  $6,000.  It 
appears,  however,  that  the  amount  of  uncol- 
lected taxes  is  $21,000,  and  that  the  common 
council  had  already  authorized  a  loan. 
There  is  no  doubt  of  the  power  of  the  coun- 
cil to  borrow  money  in  anticipation  of  the 
collection  of  the  taxes  levied.    It  further  ap- 


pears that  the  act  creating  the  department 
went  into  effect  June  1,  1893,  after  the  an- 
nual budget  had  been  determined  upon,  and 
that  the  salary  fixed  by  the  act  was  not 
anticipated  in  that  budget.  The  expense, 
therefore,  must  be  regarded  as  contingent, 
and,  under  the  charter,  payable  out  of  the 
contingent  fund,  which  is  shown  to  be  am- 
ply sufficient. 

3.  It  is  contended  that  the  legislature  has 
no  authority  to  fix  the  salaries  of  city  of- 
ficers. The  constitution  (section  38,  art.  4) 
provides  that  the  legislatiu-e  may  confer  up- 
on cities  such  powers  of  local  legislative  and 
administrative  character  as  they  may  deem 
proper.  The  legislature  has  not,  in  this  in- 
stance delegated  to  the  municipality  the 
power  to  fix  the  salary  in  question.  The 
point  is,  we  think,  ruled  by  Wyandotte  v. 
Drennan,  46  Mich.  478,  9  N.  W.  500. 

4.  When  the  act  took  effect,  relator  wa. 
the  then  city  counselor,  under  a  former  ap- 
pointment. He  was  reappointed  July  15, 
1893,  and  for  the  months  of  June  and  July 
was  paid  at  the  rate  fixed  b^'  the  act.  Re- 
spondents contend  that,  for  this  period,  re- 
lator was  entitled  only  to  the  salary  as  fixed 
under  the  former  appointment.  The  act  is 
supplemental,  and  does  not  disturb  existing 
officers,  but,  on  the  contrary,  constructs  the 
department  with  material  then  on  hand; 
and  the  provision  respecting  salary  relates 
as  well  to  the  city  counselor  acting  before 
the  act  took  effect  as  to  the  city  counselor 
subsequently  appointed.  The  order  Is  there- 
fore affirmed,  with  costs  to  relator. 


INCREASE  OR  DECREASE  OF  PAY  DURING  TERM  OF  OFFICE. 


67 


BUCK  V.    CITY  OF  EUREIvA.     (No.  15,733.) 

(42  Pac.    243,    109   Cal.    504.) 

Supreme  Court  of  California.     Oct.  10,  1895. 

In  bank.  Appeal  from  superior  court,  Hum- 
boldt couuty;    G.  W.  Hunter,  Judge. 

Action  by  S.  M.  Buck  against  tlie  city  of 
Eureka  for  professional  services.  From  a  judg- 
ment for  plaintiff,  and  from  an  order  denying 
a  new  ti-ial,  defendant  appeals.     Reversed. 

J.  N.  Gillett  and  E.  W.  Wilson,  for  appellant. 
Buck  &  Cutler,  for  respondent. 

HENSHAW,  J.i  *  *  *         *         * 

The  office  under  consideration  was  given  a 
potential  existence  by  the  acts  of  the  legis- 
lature in  the  sections  of  the  Code  above  quot- 
-ed.  The  Tilaiutiff,  having  accepted  the  ap- 
pointment to  it,  and  received  the  emoluments 
of  it,  is  estopped  from  endeavoring  to  show  to 
his  own  advantage  that  the  council  did  not 
follow  a  prescribed  mode  in  perfecting  that 
potential  existence.  It  was  therefore  error  for 
the  trial  court  to  strike  out  the  admitted  evi- 
dence. It  does  not  seem  to  be  disputed  that, 
if  plaintiff's  services  in  the  case  of  Wing  Hing 
V.  City  of  Eureka  were  such  as  under  his 
office  he  was  in  duty  Iwund  to  perform,  his 
contract  with  the  council  would  be  void  as  an 
attemi)t  to  increase  his  comiiensation;  and,  in- 
deed, no  question  can  arise  upon  this  point. 
It  is  definitively  settled  by  the  language  of  the 
constitution,  in  the  first  place  (Const,  art.  11, 
§  9);  and  in  the  second  place,  even  in  the 
absence  of  such  a  provision,  such  a  contract 
would  be  declared  void  upon  grounds  of  pub- 
lic policy.  "It  is  a  well-settled  rule  that  a 
person  accepting  a  public  office  with  a  fixed 
salary  is  bound  to  perform  the  duties  of  the 
office  for  the  salary.  He  cannot  legally  claim 
additional  compensation  for  the  discharge  of 
these  duties,  even  though  the  salary  be  a  very 
Inadequate  remuneration  for  the  services. 
*  *  *  Whenever  he  considers  the  compensa- 
tion inadc(iuate,  he  is  at  liberty  to  resign.  The 
rule  is  of  importance  to  the  public.  To  allow 
changes  and  additions  in  the  duties  properly 
belonging  or  which  may  be  attached  to  an 
office  to  lay  the  foundation  for  extra  compen- 
Bation  would  introduce  intolerable  mischief. 
The  rule,  too,  should  be  strictly  enforced." 
Dill.  Mun.  Corp.  (4th  Ed.)  §  233;  Mechem, 
Pub.  Off.  §§  324-37G. 

The  contention  here  is,  however,  that  these 
services  were  not  among  those  whose  i)er- 
formance  is  enjoined  on  the  city  attorney,  and 
herein  plaintiff  relies  upon  the  case  of  Her- 
rington  v.  Santa  CLara  Co.,  44  Cal.  49G.  As 
the  law  then  stood,  the  district  attorney  was 
entitled  to  receive  as  compensation  10  per 
cent,  of  all  money  recovered  by  him  for  the 
county  in  any  action.  The  county  supervisors, 
ignoring  the  district  attorney,  authodzed  other 
attorneys  to  bring  suit  without  tlie  county  for 
the  recovery  of  a  large  sum  of  money.     Re- 

1  Part  of  the  opinion  is  omitted. 


covery  was  had  in  the  action,  and  the  district 
attorney  sued  to  recover  his  percentage.  The 
law  made  it  the  duty  of  the  district  attorney 
to  prosecute  all  actions  for  the  recovery  of 
debts,  etc.,  and  to  defend  all  suits  brought 
against  his  county.  Pol.  Code,  §  42."5G.  The 
district  attorney  was  not  denying  that  it  was 
his  duty  to  prosecute  this  suit,  but,  to  the  con- 
trary, insisted  that  it  was  his  duty.  The  de- 
fendant county  never  claimed  that  it  was  not 
the  district  attorney's  duty  to  prosecute  the 
suit,  but  insisted  that  the  duty  was  not  ex- 
clusively imposed  upon  and  tlie  right  not  ex- 
clusively vested  in  him,  but  that  the  super- 
visors could,  if  they  saw  fit,  engage  other 
counsel  to  perform  the  seiTice,  as  in  many 
cases  special  counsel  are  employed.  The  lan- 
guage of  the  court  in  its  opinion,  therefore, 
while  not  obiter,  was  not  addressed  to  any 
contention  raised  by  the  parties.  The  decision 
of  the  court  was  by  a  bare  majority;  Chief 
Justice  Wallace  being  disqualified,  and  Jus- 
tice Rhodes  expressing  no  opinion.  It  was 
based  upon  two  grounds;  the  second,  which 
is  argued  at  length,  holding  that,  as  the  dis- 
trict attorney  had  not  collected  the  money,  he 
was  not  entitled  to  his  commission;  and  the 
first,  which  is  not  argued,  being  a  declaration 
to  the  effect  that  it  was  "not  a  duty  enjoined 
upon  the  district  attorney  by  law  to  prosecute 
or  defend  civil  actions  in  which  the  county  is 
interested  which  are  pending  in  any  other 
county  than  his  own."  This  declaration  is, 
however,  supported  by  no  reasoning,  by  no 
analysis  of  the  statute,  and  by  no  citation  of 
authority;  and  it  would  be  difficult  so  to  sup- 
port it  Says  Dillon:  "Tlie  statutes  of  the 
legislature  and  the  ordinances  of  our  municipal 
corporations  seldom  prescribe  with  much  de- 
tail and  particularity  the  duties  annexed  to 
public  offices;  and  it  requires  but  little  in- 
genuity to  ran  nice  distinctions  between  what 
duties  may  and  what  may  not  be  considered 
strictly  official;  and,  if  these  distinctions  are 
much  favored  by  courts  of  justice,  it  may  lead 
to  great  abuse,"  Dill,  Mun.  Corp.  (4th  Ed.) 
§233. 

When  the  law  of  the  state  says  that  the 
district  attorney  shall  prosecute  and  defend 
all  suits,  and  the  city  attorney  shall  attend 
to  "all  suits,  matters  and  things  in  which  the 
city  may  be  legally  interested"  it  is  a  most 
forced  and  unwarranted  construction  to  hold 
that  in  the  one  case  it  means  only  such  suits 
as  are  commenced  and  finally  determined  in 
the  county  courts,  and  in  the  other  only  such 
as  are  in  like  manner  commenced  and  deter- 
mined in  the  municipal  courts.  If  the  legis- 
lature meant  that,  it  could  and  would  have 
said  so.  But  when  it  says  "all  suits,  matters 
and  things,"  the  language  will  bear  no  other 
construction  than  that  which  is  patent  on  its 
face.  No  rules  of  interpretation  are  necessary 
to  be  considered,  for  no  need  or  room  for  in- 
terpretation exists.  Thus,  the  court,  in  Ryce 
V.  City  of  Osage  (Iowa)  5.5  N.  W.  532.  said  the 
law  made  it  the  duty  of  the  city  attorney  "to 
act  as  attorney  for  the  city  in  any  suit  or  ac- 


68 


OFFICERS  AND  AGENTS  OP  PUBLIC  CORPORATIONS. 


tion  brought  by  or  against  the  city,  and  gen- 
erally to  attend  to  the  interests  of  the  city  as 
its  attorney."  There,  as  here,  plaintiff  claim- 
ed extra  eompeusation  for  services  rendered 
under  contract  with  the  council  for  defending 
an  action  against  the  city  in  the  district  and 
supreme  court,  and  there,  as  here,  urged  that 
it  was  no  part  of  his  official  duty  to  defend  the 
suit.  Says  the  court:  "It  seems  to  us  that 
a  mere  reading  of  that  section  of  the  ordinance 
prescribing  the  duties  of  the  city  attorney  is 
sufficient  to  show  that  under  it  he  was  re- 
quired to  act  for  the  city  in  any  case  brought 
by  or  against  it,  *  *  *  That  the  services 
rendered  by  plaintiff,  and  for  which  he  seeks 
now  to  recover,  were  included  within  his  du- 
ties as  city  attorney,  is  too  plain  to  admit  of 
argument."  In  Lancaster  Co.  v.  Fulton,  128 
Pa.  St.  48,  18  Atl.  3S4,  construing  a  similar 
statute,  say  the  court:  "The  services  for 
which  the  contract  in  question  undertakes  to 
provide  are  clearly  within  the  sphere  of  the 
duties  of  the  solicitor  of  I/incaster  county." 
Russell  V.  Hallett,  23  Kan.  276,  is  not  in  con- 
flict with  the  authorities  upon  this  question. 
In  that  case  the  county  attorney  sued  his  coun- 
ty for  compensation  for  services  demanded  of 
him  without  the  duties  of  his  office,  as  the 
court  decided.  He  had  been  compelled  to  as- 
sist in  a  ti-ial  in  a  county  other  than  his  own. 
Tlie  law  expressly  limited  his  duty  to  attend- 
ing before  magistrates  and  judges  in  his  coun- 
ty.    Gen.  St.  Kan.  18C8,  p.  284,  §  137. 

But  it  is  unnecessary  to  multiply  quotations 
upon  this  plain  proposition.  We  think  it  must 
be  apparent  that  the  construction  given  to  the 
statute  in  Herrington  v.  Santa  Clara  Co.,  su- 
pia,  cannot  be  supported,  and  should  no  longer 
be  maintained;  and  we  believe  that  the  evil 
results  to  the  public  service  which  must  arise 
under  that  construction  justify  and  demand  a 
declaration  from  this  court  tliat  it  be  no  longer 
considered  as  authority.  It  is  of  the  last  im- 
portance that  any  and  every  public  officer  en- 
tering upon  the  discharge  of  his  duties  should 
know  once  and  for  all  that,  be  the  duties  oner- 
ous or  be  they  easy,  the  compensation  for 
them  must  be  that  fixed  by  law,  and  that  only. 
If  they  become  too  burdensome,  the  law  does 
not  f()r])i(l  the  officer's  resignation;  but  it  does 
emphaticaUy  say  that  he  shall  not  under  any 
circumstances,  by  use  of  tlie  power  of  his  of- 
fice, by  contract,  exi)ress  or  implied,  fair  or 
unfair,  or  by  aid  even  of  legislative  enactment, 
obtain  increased  compensation  for  their  per- 
formance. "The  successful  effort  to  obtain 
oflHce  is  not  unfrequently  followed  by  efforts 
to  increase  its  emoluments;  while  the  inces- 
sant changes  which  the  progressive  spirit  of 
the  times  is  introducing  effects,  almost  every 
year,  changes  in  the  cliaracter  and  addition  to 
the  amount  of  duty  in  almost  every  official 
Station;  and  to  allow  the  changes  and  addi- 
tions to  lay  the  foundation  of  claims  for  exti-a 
services  would  soon  introduce  intolerable  mis- 
i.-hief."  Evans  v.  City  of  l^euton,  24  N.  J. 
Law,  7G4. 

The  services  here  performed  by  the  plaintiff 


being  such  as  it  was  his  duty  to  perform  as 
the  city  attorney  of  the  city  of  Eureka,  the 
contract  was  an  attempt  to  increase  his  com- 
pensation, and  is  in  violation  of  the  constitu- 
tion, against  public  policy,  and  therefore  void,  ( 
"A  promise  to  pay  them  [officers]  extra  com- 
pensation is  absolutely  void,  imder  the  statute 
of  Ohio.  Such  promise  could  not  be  enforced 
at  common  law,  being  against  sound  policy 
and  quasi  extortion.  English  judges  have  de- 
clared that  such  are  novel  in  comts  of  justice, 
and  that  actions  founded  on  such  promises  are 
scandalous  and  shameful  (2  Burrows,  934); 
and  in  the  court  of  errors  of  New  York  they 
meet  with  no  more  favor  (Hatch  v.  Mann,  15- 
Wend.  4G)."  Gillmore  v.  Lewis,  12  Ohio  St. 
281;  Vandercook  v.  Williams,  106  Ind.  345,  1 
N.  E.  619,  and  8  N.  E.  113;  City  of  Decatur 
V.  Vermillion,  77  lU.  315;  Hunter  v.  Nolf,  71 
Pa.  St.  2S2. 

Nor  can  plaintiff  recover  under  the  contract, 
as  by  his  second  count  he  seeks  to  do,  for  such 
part  of  the  sei"viccs  as  was  rendered  after  his 
term  of  office  had  expired.  This  is  not  the/ 
case  of  a  city  attorney  carrying  on  litigation,^ 
after  his  term  of  office  had  expired,  with  the 
knowledge  and  consent  of  the  authorities,  iu 
which  case  an  implied  contract  and  promise  to 
pay  might  arise  after  his  tenure  had  teiTuinat- 
ed.  Here  plaintiff  declares  on  and  seeks  ta 
recover  under  a  contract  against  public  policy 
and  wholly  void.  Such  a  contract  will  not  sup- 
port any  action  for  recovery.  As  is  said  by 
the  court  in  Lancaster  Co.  v.  Fulton,  128  Pa. 
St.  48,  18  Atl.  384:  "There  is  no  pretense  that 
any  new  agreement  was  entered  into,  or  the 
terms  of  the  original  in  any  manner  changed, 
after  the  expiration  of  the  term  of  office.  Nei- 
ther the  subject  of  a  new  contract  nor  the 
modification  of  the  original  ever  appears  to 
have  been  considered  by  the  parties.  The 
sei-vices  of  plaintiff  below  were,  no  doubt, 
efficient  and  valuable;  but,  as  far  as  they 
were  rendered  during  his  term  of  office,  his  sal- 
ai-y  is  all  the  compensation  he  can  claim.  As 
to  services  rendered  after  the  expiration  of  his 
term  of  office,  under  and  in  pursuance  of  the 
original  illegal  and  void  contract,  he  cannot, 
under  the  pleadings  and  evidence  in  this  case, 
recover."  A  void  contract  cannot  form  the 
basis  of  a  judicial  proceeding.  Lumber  Co. 
V.  Hayes,  76  Cal.  387,  18  Pac.  391. 

There  are  considerations  in  plaintiff's  case 
which  appeal  with  force  to  a  court.  In  the 
first  place,  the  services  rendered,  as  found  by 
judge  and  jury,  were  of  great  value  to  de- 
fendant. In  the  second  place,  they  were  ren- 
dered under  an  early  interpretation  given  to 
the  statute,  which  justified  plauitiff  in  suing 
upon  his  contmct.  In  now  declaring  what  we 
believe  to  be  the  only  tenable  construction  of 
tlie  law  relative  to  the  duties  of  the  office,  it 
has  followed  as  a  necossai-y  consequence  that 
the  contract,  void  as  against  public  policy,  will 
not  support  a  cause  of  action.  Plaintiff,  how- 
ever, if  the  facts  will  warrant  it,  should  re- 
cover, not  upon  the  oi-iginal  or  void  contract, 
but  upon  an  implied  one  for  services  rendered 


INCREASE  OR  DECREASE  OF  PAY  DURING  TERM  OF  OFFICE. 


69 


/  after  the  expiration  of  his  term  of  office.  The 
judgment  and  order  are  reversed,  with  direc- 
tions to  the  trial  court  to  permit  plaintiff,  if 
he  shall  be  so  advised,  to  amend  his  com- 
plaint, or  file  an  amended  complaint,  seeking 
^compensation  upon  quajitum  mermt  for  serv- 


ices rendered  after  the  expiration  of  his  term 
of  office. 

We  concur:  BEATTY,  O.  J.;  McFAR- 
LAND,  J.;  GAROUTTE,  J.;  VAN  FLEET, 
J.;    HARRISON,  J.;    TEMPLE,  J. 


70 


OFFICERS  AND  AGENTS  OF  PUBLIC  CORPORATIONS. 


CITY  OF  LOUISVILLE  v.  WILSON.    SAME 

V.    NEVIN.    SAME    v.    HOERTZ.    SAME 

V.  MARTIN.      SAME  v.  O'CONNELL. 

(36  S.  W.  944.) 

Court  of  Appeals  of  Kentucky.     June  24,  1896. 

Appeal  from  circuit  court,  Jefferson  county. 

"To  be  officially  reported." 

Cases  submitted  without  action  by  Charles  A^ 
Wilson,  by  Joseph  Nevin,  by  J.  Henry  Hoertz, 
by  J.  P.  Martin,  and  by  J.  J.  O'Connell, 
against  the  city  of  Louisville.  There  were 
judgments  for  the  plaintiffs,  and  defendant 
appeals.     Affirmed. 

W.  S.  Barker,  Fairleigh  &  Straus,  and  John 
W.  Barr,  Jr.,  for  appellant  Dodd  &  Dodd, 
Humphrey  &  Davie,  CarroU  &  Hagan,  and 
D.  W.  Baird,  for  appellees. 

LEWIS,  J.  It  is  agreed,  in  these  five  cases, 
submitted  and  decided  without  action,  as  fol- 
lows: Appellees  Wilson  and  Nevin  were  ap- 
pointed by  the  mayor,  for  the  term  of  four 
years,  December  14,  1893,  confirmed  by  the 
board  of  aldermen  of  Louisville,  and  imme- 
diately qualified  as  members,  respectively,'  of 
the  board  of  public  safety  and  board  of  pub- 
lic works.  January  9,  1894,  by  ordinance  of 
the  general  council,  the  salary  of  each  mem- 
ber of  the  two  boards  was  fixed  at  $3,000  per 
annum.  By  ordinance  approved  January  2G, 
1894,  it  was  provided  there  should  be  one  sec- 
retaiy  of  the  board  of  public  woi'ks,  his  com- 
I>ensation  being  fixed  at  $2,000  per  annum; 
and  January  31,  189<3,  appellee  Hoertz  waa 
by  the  board  of  public  works  appointed  sec- 
retary for  the  term  of  fom*  yeai"s.  By  ordi- 
nance approved  May  21,  1894,  it  was  provided 
the  compensation  of  deputies  of  the  police 
count  should  be  $1,500  each,  payable  monthly; 
and  in  January,  1895,  appellee  J.  J.  O'Con- 
nell was  by  J.  N.  Vetter,  bailiff  of  said  court, 
appointed  one  of  his  assistants  or  deputies. 
January  9,  1894,  by  ordinance  the  compensa- 
tion of  official  stenographer  of  the  city  court 
was  fixed  at  $1,000  per  annum;  and  February 
24,  1894,  appellee  John  P.  Martin  was  by  the 
judge  of  the  court  appointed  to  the  office. 
December  26,  1895,  the  general  council,  com- 
I)oeeB  of  newly -elected  members,  passed  an  or- 
dinance, duly  approved  by  the  mayor,  chan- 
ging salaries  of  members  of  the  boards  of 
public  safety  and  public  works  to  $2,500  each, 
per  annum,  that  of  secretary  of  board  of  pub- 
Dc  works  to  $1,200  per  annum,  that  of  deputy 
bailiff  to  $1,200  per  annum,  and  that  of  offi- 
cial stenographer  to  $900  per  annum. 

The  main  question  in  this  case  is  whether 
the  ordinance  of  December,  1895,  violates  sec- 
tion 161  of  the  constitution,  as  follows:  "The 
compensation  of  any  city,  county,  town  or 
municipal  officer  shall  not  be  changed  after 
his  election  or  appointment,  or  during  his 
term  of  office,  nor  shall  the  term  of  any  such 
office  be  extended  beyond  the  period  for  which 
he  may  have  been  elected  or  appDiiitcd."  And 
proper  determination   of  it   involves  Inquiry 


whether  the  various  ordinances  referred  to 
which  first  fixed  the  compensation  of  these 
officers  were  valid  and  effectual  /"or  that  put^ 
pose.  If  any  of  them  be  invalid  at  all,  it  is 
only  because  they  were  passed  after  the  offi- 
cers affected  by  them  had  qualified  and  com- 
menced discharge  of  their  duties;  for  all  ap- 
pear to  have  been  regularly  passed  and  ap- 
proved, under  authority  conferred  by  section 
2756,  St.  Ky.,  applicable  to  Louisville,  a  city 
of  the  first  class,  as  follows:  "Except  as  oth- 
erwise herein  provided  the  general  council 
may  by  ordinance  prescribe  the  duties,  defln© 
the  terms  of  office,  fijc  the  compensation  and 
the  bonds,  and  time  of  election  of  all  officers 
and  agents  of  the  city."  But  as  none  of  those 
ordinances,  except  the  particular  one  fixing 
salaries  of  members  of  the  board  of  public 
health  and  of  the  board  of  public  works,  were 
passed  subsequent  to  appointment  and  qualifi- 
cation of  the  several  officers  mentioned,  there 
is  no  reason  for  calling  in  question  the  validi- 
ty of  any,  except  it  may  be  that  one. 

The  purixkse  of  section  161  was  to  prevent 
as  well  reduction  of  compensation  of  officers, 
sometimes  the  result  of  prejudice  and  false 
economy,  as  increase  of  it,  sometimes  brought 
about  by  importunity  and  under  influence  on 
their  part.     So  there  cannot  be  any  change  I 
at  all  of  an  officer's  compensation  during  his  / 
term.     But   there  is   an  essential  difference,  \ 
which  we  are  satisfied  the  framers  of  the  con- 
stitution   had    in    mind,    between    fixing   the 
amount  of  compensation  an  officer  shall  re- 
ceive,   not    hitherto   ascertained   and    settled, 
and  changing  it  after  it  has  been  fixed.     It  is  ' 
the  obvious  and  uniform  policy  of  government,  i 
state  and  municipal,  as  well  as  just  to  each  I 
officer,  to  fix  his  compensation  definitely  and 
certainly  as  to   amount,   except   when   he   is  I 
paid  by  fees  of  office.     And  section  161  does 
not  in  terms,  nor  was  it  intended  to,  forbid 
cr  at  all  relate  to  any  statute  or  ordinance 
that  for  the  first  time  does  fix  the  salary  of 
an  officer.     But  it  is  equally  necessary,   for 
protection  of  both  the  government  and  officer, 
that  his  salary,  when  once  fixed,  should  not 
be  changed  during  his  term;  and  for  no  other 
purpose  than  to  prevent  that  evil  was  section 
161  made  part  of  the  constitution.  v 

It  is,  however,  contended,  that  section  2824^ 
and  section  2861  had  the  effect  to  fix  and  se- 
cure to  members,  respectively,  of  the  board  of 
public  safety  and  board  of  public  works  a  defi- 
nite amount  of  compensation;  the  two  sec- 
tions being  alike,  and  as  follows:  "Each 
member  shall  receive  a  salary  of  not  less  than 
twenty-five  hundred  dollars."  But  it  is  plain  l 
the  legislature  did  not  intend  thereby  any 
more  than  to  prescribe  a  minimum  of  the  | 
compensation  which  the  general  council  had 
keen  by  section  2756  already  empowered  to 
definitely  and  authoritatively  fix.  And  it  is 
to  us  equally  plain  that,  until  the  ordinance 
•f  January  9,  1894,  was  passed  and  approved, 
the  members  of  the  two  boards  did  not  have 
legal  right  to  demand,  nor  the  city  treasurer 
legal  authority  to  pay,  them  any  compensa- 


INCREASE  OR  DECREASE  OF  PAY  DURING  TERM  OF  OFFICE. 


71 


\' 


tion  whatever.  In  our  opinion  the  last-named 
ordinance  is  valid,  and  consequently  the  one 
cf  December  2G,  1895,  must  be  held  invalid. 

There  can  be  no  question  of  appellees  Wil- 
son and  Nevin  being  officers,  in  the  meaning 
of  section  161,  and  the  remaining  inquiry  is 
whether  the  other  appellees  are.  There  axe 
various  tests  by  which  to  determine  who  are 
officers,  in  the  meaning  of  the  law;  but  at 
last,  in  case  of  uncertainty,  the  intention  of 
the  lawmakers  controls.  To  constitute  an  ofti- 
cer,  it  does  not  seem  to  be  material  whether 
his  term  be  for  a  period  fixed  by  law,  or  en- 
dure at  the  will  of  the  creating  power.  But,  if 
an  individual  be  invested  with  some  portion  of 
the  function  of  the  government,  to  be  exercis- 
ed for  the  benefit  of  the  public,  he  is  a  public 
officer.  Mechem,  Pub.  Off.  §  1.  The  board 
of  public  works  is  by  statute  vested,  conjoint- 
ly with  the  mayor,  with  executive  power,  and, 
as  its  name  indicates,  has  control  and  super- 
vision of  public  places  and  public  improve- 
ments, with  authority  to  make  contracts  in 
regard  thereto.  By  section  2803  it  has  power 
to  prescribe  rules,  not  inconsistent  with  any 
statute  or  ordinance,  regulating  its  own  pro- 
ceedings and  the  conduct  of  its  officers,  clerks, 
and  employes,  distribution  and  performance 
of  its  bvisiness,  and  preservation  of  the  books, 


records,  papers,  and  property  under  its  con- 
trol; and,  while  it  does  not  appear,  from  the 
agreed  statement  of  facts,  what  particular  du- 
ties are  assigned  to  the  secretary  of  the  t)oard, 
it  is  manifest  he  was  intended  to  be  and  is 
more  than  a  mere  employe;  for  he  is  required 
to  execute  a  bond  for  proper  discharge  of  his 
duties,  and,  being  next  in  authority  to  mem- 
bers of  the  board,  is  the  proper  person  to  keep 
the  required  journal  of  its  proceedings,  and 
preserve  books,  papers,  and  records  affecting 
the  public.  In  our  opinion,  he  should  be  held 
an  officer,  in  the  meaning  of  section  161.  As 
to  appellee  O'Connell,  performing,  as  assistant 
bailiff,  the  duties  of  a  peace  officer,  and  hav- 
ing authority  to  serve  process  and  make  ar- 
rests, there  can  be  no  question  of  his  being  an 
officer.  Besides,  the  statute  expressly  pro- 
vides for  appointment  of  assistant  bailiff,  as 
it  does  for  the  appointment  of  official  stenog- 
rapher, whose  official  acts  have,  in  degree,  the 
same  verity  and  force  as  do  those  of  the  clerk 
of  the  police  court.  We  think  appellees  are 
all  officers,  in  the  meaning  of  section  161. 
Judgment  affirmed. 

GUFFYi  and  DU  RELLE,  JJ.,  dissent. 
*  *  *  *  *  *  * 

1  Dissenting  opinion  is  omitted. 


72 


OFFICERS  AND  AGENTS  OF  PUBLIC  CORPORATIONS. 


OLDHAM  V.  MAYOR,  ETC.,  OF  BIRMING- 
HAM. 

(14  South.  793,   102  Ala.  357.) 

Supreme  Court  of  Alabama.     Feb.  8,  1894. 

Appeal  from  city  court  of  Birmingham;  H. 
A.   Sharpe,  Judjre. 

Action  by  John  S.  Oldham  against  the 
mayor  and  aldermen  of  the  city  of  Birming- 
ham to  recover  salary  alleged  to  be  due  plain- 
tiff as  sergeant  of  police  <^  such  city.  From 
a  judgment  for  defendant,  plaintiff  appeals. 
Affirmed. 

Cabaniss  &  Weakley,  for  appellant.  H.  C. 
Selheimer,  for  appellee. 

HARALSON,  J.  This  is  an  action  of  as- 
sumpsit by  John  S.  Oldham,  the  appellant, 
against  the  mayor  and  aldermen  of  Birming- 
ham, a  municipal  corporation,  to  recover  the 
salary  claimed  by  him  as  attaching  to  the 
office  of  sergeant  of  police  for  said  city, 
which  accrued  to  him  from  and  after  the 
21st  of  June,  1893,  and  which  was  payable, 
as  alleged,  semimonthly.  The  facts  in  the 
ca.se  are  undisputed.  It  was  tried  on  an 
agreed  statement,  subject  to  legal  objections. 
The  trial  was  by  the  court,  without  the  in- 
tervention of  a  jury,  and  the  judgment  be- 
ing for  the  defendant,  on  exception  reserved 
to  the  conclusion  and  judgment  of  the  court, 
an  appeal  is  here  prosecuted  to  reverse  that 
judgment.  The  legislatm-e,  at  its  session  of 
1890-91,  established  a  new  charter  for  the 
city  of  Birmingham.  Acts  1890-91,  p.  114. 
Under  this  charter,  the  corporate  powers  of 
the  city  were  vested  in,  and  to  be  exer- 
cised by,  a  mayor  and  10  aldermen,  who 
constituted  the  governing  body,  called  the 
"Board  of  ISIayor  and  Aldermen,"  to  be  elect- 
ed by  the  people  on  the  first  Tuesday  in  De- 
cember, biennially.  Prior  to  1893,  this  board 
had  power  and  control  over  the  police  force 
of  the  city.  On  December  12,  1892,  the  act 
of  the  legislature,  entitled  "An  act  to  es- 
tablish a  board  of  commissioners  of  police 
for  the  city  of  Birmingliam,  Alabama,"  was 
approved,  by  which  act,  it  was  made  the 
duty  of  this  board  to  appoint  such  police 
officers  and  policemen  as  were  or  might  be 
proscribed  by  the  city  ordinance.  On  the 
12th  March,  189.3,  the  police  commissioners, 
having  been  duly  appointed,  and  qualified 
under  said  act,  and  i)rocecding  thereunder, 
elected  the  police  force  for  said  city,  con- 
sisting of  a  chief  of  police,  a  night  captain, 
a  day  and  night  sergeant  and  2G  patrolmen, 
the  day  sergeant  so  elected  being  the  plain- 
tiff, .John  S.  Oldham.  These  were  the  police 
officers  and  policemen  at  that  time  authorized 
by  city  ordinance.  The  board  of  mayor  and 
aldermen  of  the  city  denied  the  right  of  said 
commissioners  to  elect  a  police  force,  and  in- 
sisted that  the  then  incumbents  of  police 
offices  had  the  right  to  serve  during  the 
whole  of  1893,  (having  theretofore  been  ap- 
pointed  by   the  city   for  the  year,)   and   re- 


fused to  recognize  the  rights  of  the  ap- 
pointees of  the  police  commission,  (including 
the  plaintiff;)  and  the  then  incumbent  of  the 
office  refused  to  vacate  and  yield  it  to  plain- 
tiff. Other  appointees  were  in  a  like  cate- 
gory. Litigation  ensued  between  the  ap- 
pointees and  the  city,  which  was  finally,  on 
the  20th  Jime,  1893,  decided  against  the  city, 
in  the  case  of  Fox  v.  McDonald,  13  South. 
416,  in  this  court.  On  the  21st  of  June,  1893, 
the  board  of  mayor  and  aldermen  adopted 
the  following  ordinance:  "Be  it  ordained  by 
the  maj^or  and  aldermen  of  Birmingham, 
that  the  offices  of  day  and  night  sergeants  are 
hereby  abolished;  that  until  the  1st  day  of 
January,  1894,  the  police  department  shall 
consist  of  one  chief,  one  night  captain,  and 
twenty-six  patrolmen."  The  plaintiff  re- 
ported for  duty  to  the  chief  of  police,  at  12 
o'clock  on  the  night  of  the  21st  of  Jime,  1893, 
who  informed  him  of  the  passage  of  said 
ordinance,  to  abolish  said  office,  adopted  that 
night,  and  told  him  to  await  fm'ther  action 
until  they  could,  on  the  following  day,  con- 
sult their  counsel,  and  until  he  could  see  the 
police  commissioners;  that  on  the  following 
day,— June  22,  1893,— they  conferred  with 
their  counsel  and  the  police  commissioners, 
and  plaintiff  went  on  duty  at  6  o'clock  a.  m., 
June  23,  1893,  and  has  since  been  performing 
his  diities  as  day  sergeant,— all  of  which  was 
done  under  the  direction  of  the  chief  of  po- 
lice. There  was  no  dispute  as  to  the  time 
plaintiff  served,  or  the  value  of  the  compen- 
sation, or  as  to  his  having  made  proper  ap- 
plication to  the  mayor  and  aldermen  to  have 
his  name  put  in  the  pay  roll  of  the  city,  or  to 
his  having  demanded,  before  suit  brought, 
what  he  alleged  to  be  due  him.  The  city  au- 
thorities refused  to  recognize  him  as  one  of 
the  city  police  force,  denied  that  they  owed 
him  anything,  and  refused  to  pay  him.  The  I 
sole  question  for  review,  as  presented  by 
plaintiff's  counsel  is,  "Did  the  mayor  and  al- ' 
dermen  of  Birmingham  have  the  power,  on  j 
June  21,  1893,  to  abolish  the  office  of  police  , 
sergeant  held  by  plaintiff,  and  thereby  de-  I 
prive  him  of  his  salaiT  during  his  term,  or  i 
can  the  ordinance  of  that  date  be  accorded  ' 
the  effect  of  taking  away  said  salary?" 

1.  Mr.  Dillon  states  the  rule  to  be,  that  \ 
"a  municipal  corporation  may,  unless  re- 
strained by  charter,  abolish  an  office  created 
by  ordmance,  and  may  also,  unless  the  em- 
ployment is  in  the  nature  of  a  contract,  re- 
duce or  otherwise  regubite  the  salaries  and 
fees  of  its  officers,  according  to  its  views  of 
expediency  and  right."  (Italics  his.)  1  Dill. 
Muu.  Corp.  §§  231,  232;  19  Am.  &  Eng.  Enc. 
Law,  52G,  555. 

2.  It  seems  to  be  well  settled,  generally, 
that  the  power  to  create  an  office  includes 
the  power  to  destroy  or  abolish  it,  and  that, 
whenever  the  people  in  convention  or  through 
the  legislature,  clothe  any  department  of  the 
government,  or  any  of  its  boards,  or  officers, 
or  municipalities  with  power,  at  discretion, 
to  create  an  office,  they  clothe  the  body  thus 


INCREASE  OR  DECREASE  OF  PAY  DURING  TERM  OF  OFFICE. 


(  authorized,  in  the  absence  of  a  declaration  of 
purpose  to  the  contrary,  with  like  power  to 
abolish  the  same  ofRce.  Beuford  v.  Gibson, 
15  Ala.  523;  Ex  parte  ScreAvs,  49  Ala.  G.">; 
Ex  parte  Lusk,  82  Ala.  522,  2  South.  140; 
People  V.  Jewett,  6  Cal.  691;  Attorney  Gen- 
eral V.  Squires,  14  Cal.  13;  Ford  v.  Commis- 
sioners, 81  Cal.  19,  22  Pac.  278;  Phillips  v. 
Mayor,  88  N.  Y.  245;  State  v.  Kalb,  50  Wis. 
178,  6  N.  W.  557;  State  v.  Smith,  65  N.  C. 
360;  19  Am.  &  Kng.  Enc.  Law,  526,  555,  and 
authorities  cited  in  notes. 

3.  There  is  in  this  state  no  constitutional 
Inhibition  to  the  abolition  of  offices  created 
by  statute,  nor  any  protection  extended  to 
salaries  attaching  to  such  offices.  Protec- 
tion is  extended  only  to  such  otiicers  as  are 
named  in  the  constitution,  whose  offices  can- 
not be  abolished,  and  whose  compensation  is 
forbidden  to  be  diminished  during  their  offi- 
cial terms.  Perkins  v.  Corbin,  45  Ala.  119; 
Ex  parte  Lambert,  52  Ala.  79. 

4.  The  election  of  one  to  a  municipal  office, 

I  and  his  acceptance  of  it,  cannot  be  regarded 
as  an  engasement  or  contract  between  the 
corporation  and  himself.  He  may  resign  at 
pleasure,  and  so,  his  office  may  be  abolished, 

I  or  his  compensation  reduced,  or  taken  away 
altogether.  He  accepts  the  trust,  with  full 
knowledge  of  the  power  of  the  legislat^ire  or 

\  the  municipality  over  the  office  and  its  emol- 
uments. University  v.  Walden,  15  Ala.  657; 
Com.  V.  Bacon,  6  Serg.  &  R.  322;  Throop, 
Pub.  Off.  §§  443,  444,  446,  447. 

z'  5.  If  anything  were  needed,  in  addition  to 
'  the  clear  and  repeated  utterances  of  this 
coiu-t,  on  this  subject,  in  the  cases  we  have 
cited,  the  supreme  court  of  the  United  States 
has  given  expression  to  language,  by  Justice 
Daniel,  so  applicable  to  this  case,  we  ven- 
ture to  quote  it:  "The  contracts,"  says  the 
court,  "designed  to  be  protected  by  the  tenth 
section  of  the  first  article  of  that  instru- 
ment, are  contracts  by  which  perfect  rights, 
certain  definite,  fixed  private  rights  of  prop- 
erty are  vested.  These  are  clearly  distin- 
guishable from  measiires  or  engageiuents 
adopted  or  undertaken  by  the  body  politic  or 
state  government  for  the  benefit  of  all,  and 
from  the  necessity  of  the  case,  and  accord- 
ing to  universal  imderstanding,  to  be  varied 
or  discontinued  as  the  public  good  shall  re- 
quire. The  selection  of  officers,  who  are 
nothing  more  than  agents  for  the  effectuat- 
ing of  such  public  purposes,  is  matter  of 
public  convenience  or  necessity,  and  so,  too, 
are  the  periods  for  the  appointment  of  such 
agents;  but  neither  the  one  nor  the  other  of 
these  airangements  can  constitute  any  obli- 
gation to  continue  such  agents,  or  to  reap- 
point them,  after  the  measures  which  brought 
them  into  being  sliall  have  been  abrogated 
as  even  detrimental  to  the  well-being  of  the 
public.  Tlie  promised  compensation  for 
services  performed  and  accepted  during  the 
continuance  of  the  particular  agency  may 
undoubtedly  be  claimed,  both  upon  princi- 
ples of  compact   and   equity;    but   to  insist 


utr   V  eii" 

have  to  I 
ment  in^ 
."     Bu!^ 


beyond  this  on  the  perpetuation  of  a  piiblic 
policy,  either  useless  or  detrimental,  and  up- 
on a  reward  for  acts  neither  desired  nor  per- 
formed, would  appear  to  be  reconcilable  with 
neither  common  justice  nor  common  sense. 
The  establishment  of  such  a  principle  would 
arrest,  necessarily,  everything  like  progi-ess 
in  government;  or  if  changes  should  be  ven- 
tured upon,  the  government  would  ha^ 
become  one  great  pension  establishment 
which  to  quarter  a  host  of  sinecures, 
ler  V.  Pennsylvania,  10  How.  416;  U.  S.  v. 
Hartwell,  6  Wall.  385;  U.  S.  v.  Mitchell,  109 
U.  S.  146,  3  Sup.  Ct.  151. 

6.  Let  the  foregoing  principles  be  applied 
to  the  facts  of  this  case,  as  we  find  them  in 
the  record.  The  charter  of  the  city  of  Bir- 
mingham confers  on  the  mayor  and  alder- 
men, the  power  to  "appoint  such  officers  as 
they  may  see  fit  and  think  necessary  for  the 
good  government  of  the  city,  *  *  *  and 
to  remove  aud  discharge  any  of  its  ofiicers 
and  employes  at  pleasure,"  (section  IS.)  and 
"to  appoint  and  re.gulate  night  and  day 
watchmen,  police,  patrol,  and  captains  there- 
of, and  to  maintain  a  police  force  of  such 
oificers  and  patrolmen  as  tliey  may  aeem 
necessary,"  (section  21,  subd.  7.)  Acts  1890- 
91,  p.  114.  Section  14  of  the  Code  of  the 
citj'of  Birmingham  provides,  that  "the  board, 
[mayor  and  aldermen]  as  soon  as  practicable 
after  its  organization,  shall  proceed  to  elect 
for  the  ensuing  j'ear,  the  following  officers: 
•  *  *  A  clerk,  [and  other  designated  offi- 
cers,] and  such  number  of  policemen  as  the 
board  may  see  fit,  to  serve  at  the  will  of 
the  board,  for  one  year,  or  until  their  suc- 
cessors are  elected  and  qualified."  (Italics 
are  ours.)  Section  46  provides  that  "the  offi- 
cers of  the  city,  in  addition  to  mayor  and 
aldermen,  shall,  until  changed  by  the  board, 
be  as  follows,  [specifying  them,]  and  such 
number  of  policemen  *  *  *  as  the  board 
may  determine,  all  of  whom  are  to  be  elect- 
ed annually  by  the  board,  to  serve  at  the  will 
of  the  board,  for  one  year,  or  until  their  suC' 
cessors  are  elected  and  qualified,  beginning 
on  the  first  of  January  of  each  and  every 
year."  On  the  21st  day  of  June,  180.3,  the 
board  of  mayor  and  aldermen  adopted  the 
ordinance,  which  we  have  quoted  above, 
abolishing  the  office  of  day  and  night  ser^ 
gi-ant.  The  powers  of  the  board  of  police 
commissioners  are  enumerated  in  sections  4 
and  5  of  the  act  creating  them.  These  pow- 
ers are  scant,  and  relate  entirely  to  the  con- 
trol of  the  police  of  the  city.  It  is  made 
their  duty  "to  appoint  a  chief  of  police  aud 
such  other  police  officers  and  policemen  as 
is  or  may  be  prescribed  by  city  ordinance," 
and  to  "exercise  full  direction  and  control 
of  the  oflBcers  and  members  of  the  police 
force  in  conformity  to  existing  laws  and  or- 
dinances, and  such  as  may  be  made,  in  the 
future,  applicable  to  the  subject."  Section 
4.  '  Section  5  gives  them  power  to  suspend 
or  remove  any  officer  of  the  police  force  or 
any  policeman  who  fails  to  perform  any  du- 


OFFICERS  AND  AGENTS  OF  PUBLIC  CORPORATIONS. 


ty  required  of  him  by  law  or  the  city  ordi- 
nances. 

7.  By  these  two  sections,  the  power  of  the 
board  of  mayor  and  aldermen  to  make  the 
appointment  of  these  officers,  as  formerly 
exercised,  was  revolicd,  and  the  power  to 
suspend  or  remove  them  was  also  taken 
away.  But,  it  will  be  observed,  that  the 
power  to  determine  what  officers  and  police- 
men are  necessary  for  the  good  government 
of  the  city,  and  to  cany  out  the  powers 
granted  in  its  charter,  and  the  power  to 
create  and  abolish  officers,  such  as  the  mayor 
and  aldermen  theretofore  had,  was  left  un- 
touched and  as  plenary  as  before. 

8.  The  police  commission,  as  is  seen  from 
the  act,  are  authorized  to  appoint  "a  chief 
of  police  and  such  other  pohce  officers  and 
policemen  as  is  or  may  be  prescribed  by  city 
ordinance."  They  have  nothing  to  do  with 
bow  large  or  how  small  the  police  force  shall 
be,— whether  it  shall  be,  at  any  time,  in- 
creased or  diminished;  have  nothing  to  do 
with  the  creation  or  abolishing  of  offices,  or 
with  the  amount  of  compensation  the  police 
officers  shall  receive,  or  with  the  finances  of 
the  city,  or  the  city  government,— nothing 
to  do,  except  to  overlook  the  police  force  and 
see  that  they  do  their  duty.  When  it  comes 
to  suspending  or  removing  one  of  them  from 
office,  even,  for  a  failure  to  perform  his  du- 
ties, it  must  be  done,  not  by  ordinance  of 
their  creation,  but  in  the  manner,  as  shall 
be  prescribed  by  city  ordinance.  No  legisla- 
tive power,  at  all,  is  given  to  them,  but  it  is 
all  reserved  for  the  mayor  and  aldermen. 
The  salaries  and  compensations  of  these  po- 
lice officers  and  policemen,  as  they  were  be- 
fore the  creation  of  this  police  commission, 
are  "to  be  prescribed  by  city  ordinance,  and 
shall  not  be  increased  or  diminished  during 
their  respective  terms."  The  only  difference 
in  the  matter  of  compensation  under  the  new 
and  the  old  order  is,  that  this  latter  act  in- 
hibits the  increase  or  decrease  of  the  sala- 
ries during  the  terms  for  which  these  officers 
were  appointed.  As  for  anything  in  the  act 
creating  this  board,  the  mayor  and  aldermen 
are  still  required,  "to  maintain  a  police  force 
of  such  officers  and  patrolmen  as  they  may 
deem  necessary,"  and  at  such  compensation 
as  they  may  prescribe. 

9.  The  contention  of  the  plaintiff,  as  stated 
by  his  counsel  is,  that  the  legislature  in- 
dicated its  purpose  in  the  police  commission 
act  to  establish  a  new  sj'stem  of  police  for 
Birmingham  with  protection  to  salaries  and 
against  removal,  except  for  cause  after  trial, 
and  it  is  not  competent  for  the  mayor  and 
aldermen,  during  the  temi  of  a  police  ser- 
geant, to  indirectly  remove  him  from  office 
or  take  away  all  salary,  by  resorting  to  the 
indirect  method  of  abolishing  the  office. 
This  claims  more  than  is  authorized  to  be 
pi-esumed,  in  respect  to  the  action  of  the 
city  government.  We  are  to  presume  they 
did  their  duty,  and  acted,  as  they  thought 
was  for  the  good  of  the  city   in  abolishing 


said  office.  The  act  inhibiting  the  diminu-\ 
tion  of  the  salary  of  the  police  officers,  is  ' 
limited  in  its  application  to  the  tenn  of  the 
officer,  and  the  inhibition,  as  to  any  partic- 
ular officer,  exists  only  so  long  as  his  term 
of  office  continues.  What  then  is  meant  by 
the  word  "term"  as  here  employed?  The 
act  does  not  fix  the  term  of  office  of  police- 
men, or  pohce  officers,  nor  does  the  charter 
of  the  citj%  nor  any  legislative  act,  do  so; 
but  it  is  wisely  left  to  the  governmental  au- 
thority of  the  city  to  determine  the  number 
and  to  maintain  such  a  police  force  "as  it 
sees  fit,"  (Charter,  §§  18,  21;)  and  the  City 
Code  (sections  14,  4G)  fixes  their  terms  to  be, 
"at  the  will  of  the  board  [of  mayor  and  alder- 
men,] or  for  one  year,  or  until  their  succes- 
sors are  elected  and  qualified."  The  term, 
then,  continues  only  so  long  as  the  board  of 
mayor  and  aldermen  wills  it  shall  continue, 
not  longer  than  a  year,  if  the  board  does  not 
will  to  terminate  it  sooner,  or  until  a  succes- 
sor is  elected  and  qualified.  The  provision  in 
the  police  act  against  an  increase  or  diminu- 
tion of  salaries,  can  have  no  application  to 
a  case  where  an  office  of  policeman  has  been 
abolished.  If  the  olfice  has  been  abolished, 
the  incidental  and  necessaiy  effect  is,  that 
the  incumbent  can  no  longer  discharge  its 
duties,  for,  there  can  be  no  officer,  where  , 
there  is  no  oflice,  and  there  can  be  no  salary/ 
where  there  is  neither  office  nor  officer.       -^ 

10.  The  purpose  of  the  legislature  in  pro-  | 
viding  against  the  removal  of  policemen  by  ' 
the   board    of   police    commissioners,    except   , 
for  cause  after  due  trial,  and  in  a  manner  to 
be  prescribed  by  city  ordinance,  was  to  pre- 
vent   injustice    and    the   exercise    of   an    ex    j 
parte,    arbitrary    and    capricious    power,    to 
the    injury,    perhaps,    of    a    faithful    officer,   j 
and  to  give  him,  at  least,  an  opportunity  of  f 
having  a  fair  ti*ial,  before  removal.    But,  this  \ 
has   no   application   to    the    exercise    of    the 
power  by  the  city,  to  create  and  abolish  of-  ' 
fices.     The  judge  of  one  of  our  city  courts  ) 
cannot  be  removed  for  cause,  without  im- 
peachment after  trial,  but  that  does  not  pre-  i 
vent  the  legislatirre  from  abolishing  the  court,  / 
and  thereby  depriving  the  judge  of  his  office 
and  salary.     Perkins  v.  Corbin,  supra.     Of- 
fices are  abolished,  it  may  be  presumed,  with- 
out reference  to  the  incumbents  or  their  con- 
duct,— though  that  might,  properly,  be  a  con- 
sideration,—but  because  they  are  no  longer 
necessaiy.     Such  statutory  offices  are  not  to 
be  retained  for  the  benefit  of  those  who  fill  , 
them,  but  alone  for  the  public  good.     Phil- 
lips V.  Mayor,  supra. 

11.  A  careful  consideration  of  the  act  creat- 
ing the  police  board  brings  us  to  the  conclu- 
sion, that  there  is  nothing  in  it,  in  conflict 
with  the  power  of  the  mayor  and  aldermen 
to  create  and  abolish  these  police  offices. 
There  was  no  intention  of  the  legislature  to 
substitute  the  police  commission  act  for  the 
charter  of  the  city  in  any  of  its  provisions,  re- 
specting the  government  of  the  city,  except 
in   the     particulars    pointed    out     above,    to 


INCREASE  OR  DECREASE  OF  PAY  DURING  TERM  OF  OFFICE. 


75 


which  extent  alone,  the  former  is  a  revision 
and  repeal  of  the  latter,  leaving  no  room  for 
any  repeal  bv  implication  as  contended  by 
appellant.  Whore  there  is  no  conflict  or  in- 
consistency between  two  acts,  and  both  may 


be   executed   without   interference   with   the 
other,  the  question  of  repeal  by  implication 
cannot   arise.      3   Brick.    Dig.   p.   750,   §   49; 
Iverson  v.  State,  52  Ala.  170. 
Affirmed. 


76 


POWERS    OF   PUBLIC    CORPORATIONS. 


•GUNNING  GRAVEL  CO.  v.  CITY  OF  NEW 
ORLEANS.      (No.  11,252.) 

(13  South.  182,  45  La.  Ann.  911.) 

Supreme  Court  of  Louisiana.     April   10,   1893. 

Appeal  from  civil  district  coui-t,  parish  of 
Orleans;    Frederick  D.  King,  Judge. 

Suit  by  the  Gvmning  Gravel  Company 
against  the  city  of  New  Orleans.  Jud.i;inent 
for    defendant.    Plaintiff    appeals.    Affinued. 

E.  M.  Hudson  and  Gilmore  &  Ba]d\^-in, 
for  appelLmt.  E.  A.  O'Sullivau,  for  appellee. 
Farrar,  Jonas  &  Kruttschnitt,  as  amici 
■cui-iae. 

McENERY,  J.  Under  specifications  sub- 
mitted to  it  by  the  city  engineer,  the  city 
councU  of  New  Orleans,  by  ordinance,  di- 
rected the  comptroller  to  advertise  for 
sealed  proposals  for  the  paving  of  the  wood 
side  of  St.  Charles  street  from  its  intersec- 
tion with  Louisiana  avenue  to  the  terminus 
of  the  present  pavement,  on  the  river  side 
of  St.  Charles  avenue,  with  Rosetta  or  Hos- 
kins  gravel.  On  the  26th  day  of  October, 
1892,  the  comptroller  advertised  for  sealed 
proposals,  as  directed  by  the  city  councU, 
to  be  received  at  his  office  untU  the  liour 
of  12  :M.  on  Wednesday,  November  2,  1892. 
The  advertisement  required  a  deposit  of  $50, 
and  a  certificate  of  said  deposit  to  accom- 
pany each  bid.  On  the  day,  November  2, 
1892,  before  the  hour  of  12  M.,— the  limit 
when  said  sealed  proposals  were  to  be  re- 
ceived,—the  plaintiff,  a  foreign  corporation, 
domiciled  in  the  city  of  Vicksburg,  state  of 
Mississippi,  o^Tier  of  beds  of  gravel  in  said 
state,  having  previously  made  the  deposit 
of  $50,  presented  and  filed  a  sealed  bid  for 
paving  said  St.  Charles  street  in  accordance 
with  the  advertisement.  The  Rosetta  and 
Hoskins  Gravel  Companies  also  presented 
bids.  The  plaintiff's  bid  was  the  lowest, 
but  was  rejected  by  the  city  coimcil,  and  the 
bid  of  the  Rosetta  Gravel  Company  accept- 
ed. There  was  no  answer  filed  by  the  city 
on  the  rule  to  show  cause  why  an  injunction 
should  not  issue,  and  there  is  no  evidence 
in  the  record,  other  than  that  of  the  exist- 
ence of  the  plaintiff  corporation,  the  bid, 
and  the  acts  of  the  council  and  the  comptrol- 
ler. There  was  judgment  for  the  city,  and 
the  plaintiff  corporation  appealed.  We  are 
therefore  compelled  to  decide  this  case  main- 
ly upon  the  facts  alleged  by  plaintiff,  and 
the  official  acts  of  the  city  government. 

We  infer  from  the  petition  that  the  Ro- 
Betta,  Hoskins,  and  Gunning  gravel  are 
about  of  the  same  quality,  and  that  the 
names  given  to  the  gravel  are  more  to  dis- 
tinguish the  several  companies  than  to  des- 
ignate any  particular  superiority  of  the 
gravel.  They  are  not  patent  processes,  ex- 
clusively controlled  by  the  owners  of  the 
patent,  which  would  exclude  competition. 
They  are  natural  deposits,  and  there  is  noth- 
ing in  the  record  to  show  that  the  bidding 


was  intended  to  be  confined  to  the  two  com- 
panies designated  in  the  resolution  of  the 
city  council  and  the  comptroller's  advertise- 
ment. The  council  had  the  undoubted  right 
to  say  with  what  material  the  streets  should 
be  paved.  It  selected  the  Rosetta  or  Hos- 
kins gravel,  but  did  not  say  that  the  com- 
panics  o-miing  the  gi-avel  should  be  awarded 
the  contract.  OUier  pei-sons  could  have  bid 
to  do  the  paving  with  this  material,  and 
there  is  no  evidence  to  show  that  it  could 
not  be  procured  by  the  bidder  from  the 
companies  owning  the  material.  The  city 
charter  requires  that  the  furnishing  of  ma- 
terial for  public  works  shall  be  given  to  the 
lowest  bidder,  but  there  is  a  proviso  that 
the  coimcil  may  reject  any  and  all  bids. 
This  proviso  in  the  charter  was  to  obtain 
the  work  and  material  at  the  least  possible 
cost  to  the  taxpayer,  after  competition;  and 
the  proviso  was  intended  for  the  same  pub- 
lic interest  and  economy,  to  protect  the  tax- 
payer from  imposition,  and,  while  inviting 
competition,  to  secure  good  material  and  re- 
sponsible contra  ctoi-s.  While  the  city  council 
would  not  be  justified,  and  the  courts  would 
intervene  to  protect  the  taxpaj'er  in  such 
event,  to  arbitrarily  reject  a  bid,  and  thus 
defeat  the  object  to  be  attained  by  compe- 
tition, it  is  vested  with  a  certain  discretion 
in  rejecting  bids,  which  will  not  be  con- 
trolled, when  exercised  with  prudence  in 
the  pubUc  interests.  In  rejecting  plaintiff's 
bid,  we  are  of  the  opinion  that  the  city 
coimcil  acted  with  prudence,  and  in  the  in- 
terest of  the  taxpayer,  to  get  material  which 
had  met  with  the  approval  of  the  taxpayers, 
and  to  dbtain  a  responsible  contractor.  We 
presume  from  the  circumstances  of  the  case, 
and  the  absence  of  complaint  by  the  taxpay- 
ers of  New  Orleans,  although  there  is  no 
direct  proof  of  the  fact,  that  the  two  rival 
companies — the  Rosetta  and  the  Hoskins— 
were  well-known  contractors  and  dealers  in 
gravel  in  the  city.  The  plaintiff  is  a  foreign 
corporation,  and  put  in  an  appearance  on 
the  last  day  on  which  bids  were  to  be  re- 
ceived. There  is  no  evidence  that  it  had 
sho^^•n  that  the  gravel  o'mied  by  it  was 
equal  or  superior  to  that  of  the  Rosetta 
Gravel  Company,  or  that  it  had  given  any 
evidence  of  its  ability  to  do  the  paving  with 
skill,  and  to  respond  in  damages  for  inferior 
work.  The  statements  to  this  effect  are 
ex  parte,  and  its  ability  to  do  the  work 
skiUfuUy,  and  to  respond  in  damages,  is 
speculative.    Judgment  affirmed. 

On  Rehearing. 

(May  27,  1893.) 

NICHOLLS,  C.  J.  It  would  appear  from  an 
inspection  of  plaintiff's  petition  that  it  con- 
tains two  distinct  demands,  presented  in  tlie 
alternative.  On  averments  by  it  deemed  suf- 
ficient to  carrj'  with  them  the  nullity  of  the 
ordinances  authorizing  the  paving  of  St. 
Charles  avenue,  and  everything  done  there- 
under, plaintiff  prayetl  that  those  ordinances, 
and  all  said  proceedings,  be  decreed  null  and 


DISCRETIONARY  POWERS  NOT  SUBJECT  TO  JUDICIAL  CONTROL. 


void;  but,  anticipating  a  possible  adverse 
decision  upon  this  demand,  it  sat  out  allega- 
tions of  a  different  chamctcr,  and  prayed 
lliat,  in  the  event  the  ordinances  be  held 
valid,  then  in  that  event  the  contract  un- 
der the  ordinance  be  awarded  to  it.  In  re- 
fusing plaintiff's  accompanying  prayer  for  an 
injunction  the  district  judge  assigned  no 
special  reasons,  and  we  are  left  in  doubt  as 
to  the  grounds  upon  which  he  based  his  ac- 
tion. The  opinion  which  we  have  rendered 
in  the  case  shows  on  its  face  that  we  passed 
by,  almost  unnoticed,  the  firet  branch  of  the 
petition,  and  went  directly  to  the  considera- 
tion of  the  second.  It  was  perfectly  obvious 
to  us  that  quoad  the  action  for  the  declara- 
tion of  the  nullity  of  the  ordinances  the 
plaintiff  had  no  standing  in  court.  The 
plaintiff  described  itself  as  a  corporation 
organized  under  the  laws  of  Mississippi,  and 
having  its  domicile  at  Vicksburg.  It  did  not 
aver  it  was  doing  business  in  this  state,  that 
it  had  any  agent  here,  that  it  had  any  prop- 
erty in  New  Orleans,  or  that  it  paid  a  dollar 
of  taxes  there;  and  it  is  quite  likely  that  the 
judge  of  division  B,  finding  no  allegation 
tending  to  show  any  legal  interest  in  the 
plaintiff,  such  as  to  authorize  it  to  invoke 
the  nullity  yt  the  ordinance  in  question,  re- 
fused the  injunction  for  that  reason.  "When 
this  court  reached  (as  it  did  reach)  itself  that 
conclusion,  the  effect  of  its  doing  so  was,  of 
course,  to  defeat  that  portion  of  plaintiff's 
demand,  independently  of  any  question  of 
the  suthciency.  otherwise,  of  plaintiff's  alle- 
gations as  to  the  nullity  of  the  ordinances. 
As  throwing  the  plaintiff  out  of  court  on  the 
score  of  want  of  legal  interest  in  the  ques- 
tion would  leave  still  in  court  its  allegations 
that  the  ordinances  were  null,  the  logical  re- 
sult, in  view  of  that  fact,  would  have  au- 
thorized us,  under  the  pleadings,  to  entirely 
do  away  with  a  discussion  of  the  second 
branch  of  plaintiff's  petition.  Be  that  as  it 
may,  we  did  in  fact  discuss  it,  and  hold  that 
the  dis^nct  judge  acted  coiToctly  in  refusing 
the  in  jimction.  In  discussing  the  question  we 
took  it  up  in  the  order  and  on  the  "theory'' 
of  plaintiff's  petition,— that  the  first  branch 
of  the  case  had  been  examine(^l  into,  and 
passed  upon  adversely  to  plaintiff's  views, 
and  that  it  was  before  us  as  one  where,  the 
ordinances  being  assumed  legal,  the  rights  of 
tlie  parties  were  to  be  determined  on  other 
issues.  In  the  very  nature  of  things  arising 
from  a  discussion  from  the  new  standpoint, 
the  court  had  to  do  away  with  every  hy- 
pothesis and  eveiy  allegation  which  had  been 
urged,  or  could  have  been  urged,  on  the  first 
branch  of  the  case,  and  to  deal  with  matters 
as  being  (up  to  the  opening  of  the  bids)  in 
ii.i  i\.  i,....-^  legal.  It  was  only  at  that  point, 
and  from  that  point,  our  discussion  began, 
on  the  hypotiietical  premises  assumed,  of 
perfect  legality  in  all  tilings  prior  to  that 
time.  Taking  up  plaintift"s  pleadings,  and 
dealing  with  them  as  applicable  to  the  sec- 
ond demand,  we  reached  the  conclusion  that 


it  was  impossible  for  the  district  judge  to 
have  rulxl  otherwise  than  he  did.  In  the 
application  for  rehearing  filed  by  the  plain- 
tiff, it  falls  into  the  error  of  seeking  to  carr7 
over,  and  make  available  for  the  second  or 
"contingent"  prayer,  allegations  which,  for 
the  pui-poses  of  that  prayer,  have  necessarily 
to  disappear. 

For  the  purposes  of  the  second  branch  of 
the  case,  we  have  to  "as.sume"  that  the  Ro- 
setta  Gravel  Company,  the  Hoskins  Gravel 
Company,  and  the  Gunning  Gravel  Company 
were  each  and  all  fairly  allowed  to  enter 
into  free  competition  with  each  other  for  the- 
paving  contract  under  a  valid  ordinance,  but 
that  the  Gunning  Gravel  Company's  bid  waS' 
Ihe  lowest  bid  of  the  three,  and  yet,  in  spite 
of  that  fact,  and  its  ability  to  furnish  all 
necessary  security,  the  city  council  awarded 
the  contract  to  the  Rosetta  Gravel  Company, 
and  that  the  mayor  would  sign  the  contract, 
imder  orders  from  the  council,  unless  re- 
strained by  injunction.  It  was  upon  this 
state  and  condition  of  the  pleadings,  and 
nothing  more,  that  wo  were  called  upon  to 
say,  "on  the  face  of  the  papci*s,"  whether  the 
district  judge  was  wrong  in  refusing  tlie  in- 
junction. The  opinion  which  we  have  ren- 
dered was  from  that  point  of  view.  Only  a 
few  days  since,  in  the  case  of  Huglies  v.  Mur- 
dock,  13  South.  Rep.  182,  we  cited  the  well- 
recognized  doctrine  in  pleading  that  up  to- 
judgment  the  pleadings  will  be  taken  most 
strongly  against  the  pleader,  and  that  un- 
knoMu,  unrecited  facts  would  not  be  as- 
sumed in  his  favor,  particularly  in  the  face- 
of  an  adverse  i-uling  of  the  district  judge. 
The  case  at  bar  falls  directly  under  that 
principle.  The  plaintiff  asks  us  to  "assume," 
as  an  absolutely  necessaiy  consequence  of  its- 
being  the  lowest  bidder  for  the  contract, 
that  it  should  be  awarded  to  him,  and  he 
asks  us  to  assume  that  fact  in  presence  of 
the  repeated  declarations  of  courts,  every- 
\Ahere,  that  sworn  officers  will  be  presumed 
to  have  done  their  duty, — certainly,  at  least, 
until  they  have  been  "alleged"  to  have  done 
otherwise.  There  is  not  one  single  word  in 
plaintiff's  petition  accusing  the  common  coim- 
cil  of  New  Orleans  with  having  acted  arbi- 
trarily, fraudulently,  or  improperly,  in  any 
manner.  The  plaintiff  relies  upon  the  naked 
fact,  advanced  bj-  it,  that  its  bid  was  th  j 
lowest,  and  tliat  its  material  was  equal  or 
siiperior  to  that  of  the  other  bidders,  and 
tliat  it  could  furnish  seeiu'ity.  We  are  left 
absolutely  in  the  dark  as  to  the  reasons  upon 
which  the  coimcil  acted.  We  are  bound,  in 
the  absence  of  direct  chargi^s  and  statements 
of  fac*^s,  to  pi'esume  that  their  action  was 
honest  and  legal.  We  cannot  eke  out  a  case 
for  the  plaintiff  by  inferences 
and  make  suspicions  and  conjecture 
the  place  of  allegations.  AVhile  it  is  possible 
there  was  such  wrongdoing,  it  might  also 
well  .be  that  the  council  acted  after  a  very 
strict  examination  into  all  the  facts  and  cir- 
cumstances which  it  had  the  legal  right  to 


eke  out  a  case  > 
of  wrongdoing,  / 
anjectures   take   / 


78 


POWERS    OF   PUBLIC   CORPORATIONS. 


'  examine  into,  in  order  to  determine  whether 
plaintiff's  bid  was  a  proper  one,  or  not,  and 
that  these  conchisions  tl\ereon  are  justified 
and  right.  It  may  well  be  that,  although  the 
plaintiff  "alleges"  his  ability  to  fm-nish  secu- 
rity, he  may,  in  fact,  never  have  tendered  it 
at  all,  or  that  the  security  furnished  was  in- 
sufficient. Plaintiff's  petition  is  silent  on 
tliese  points.  If  the  council  was  gifilty  of 
wrongdoing,  plaintiff  should  have  directly 
so  alleged,  and  stated  facts  and  circum- 
stances to  show  in  what  way,  and  from  what 
cause,  that  wrongdoing  arose.  We  repeat 
■  here  what  we  said  in  the  Hughes  Case,— that 
when  a  plaintiff  selects  an  act  as  the  object 
^f  his  attack  which  is  not  per  se  necessarily 
\  wrongful  and  illegal,  but  which  may  exist 
'  ^consistently  with  honesty,  fair  dealing,  and 
legality,  it  is  the  duty  of  the  attacking  pai-ty 

Ito  set  out  specifically  the  facts  which  would 
give  to  the  act  an  illegal  or  wrongful  char- 
acter. Whatever  expressions  were  used  in 
our  opinion  to  the  effect  tliat  the  council  had 
acted  pradently  and  rightly  must  be  read 
and  construed  from  the  standpoint  and  from 
the  circumstances  under  which  they  were 
employed.  We  did  not  intend  to  say,  as  a 
fact,  that  the  council  had  so  acted,  but  that 
for  the  purposes,  exclusively,  of  this  case,  as 
presently  placed  before  us,  we  were  bound  to 
j  assume  they  had  done  so.  The  fear  which 
I  plaintiff  entertains,  that  we  have  committed 
ourselves  to  holding  that  an  arbitrary  selec- 
tion by  a  common  council  of  tliree  or  four 
favored  individuals,  to  whom,  and  to  no  oth- 
ers, it  would  extend  invitations  to  give  in 
bids  for  contracts,  or  to  a  selection  of  gravel 
I  at  any  particular  ijoint  or  locality,  under 
circumstances  such  as  to  make  the  bids,  in 
reality,  but  imder  disguised  pretexts,  to  be 
nothing  more  or  less  than  the  bids  of  the 


particular  persons  owning  the  same,  or  that 
we  have  recognized  and  given  our  sanction 
to  the  doctrine  that  a  common  council,  under 
a  grant  to  accept  or  reject  bids,  has  the  right 
to  arbitrarily  and  finally  reject  the  lowest 
bid,  or  to  accept  the  higher,  without  any 
facts  justifying  such  action,  is  totally  im- 
founded.  There  is  high  authority  for  hold- 
ing to  the  contrary.  In  the  case  of  People  v. 
Gleason,  25  N.  E.  Rep.  5,  the  com^  of  appeals 
of  the  state  of  New  York  said:  "The  claim 
is  made  on  behalf  of  the  relator  that  there  is 
a  conclusive  presumption  that  the  common 
council  adjudicated  that  his  bid  was  that  of 
the  lowest  responsible  bidder.  If  this  claim 
be  weU  foimded,  then  provisions  like  that 
above  quoted  [providing  tbat  contracts 
should  be  let  to  the  lowest  bidder]  from  the 
city  charter  are  of  little  use,  and  they  can 
always  be  effectually  disregarded  and  vio- 
lated. It  is  true  that  the  common  council, 
where  there  are  several  bidders,  have  juris- 
diction to  determine  who  is  the  lowest  re- 
sponsible bidder,  but  in  order  to  give  its 
action  any  legal  effect  it  must  exercise  its 
jurisdiction,  and  make  a  determination  based 
upon  some  facts.  If  it  refuses  to  accept  the 
lowest  bid  for  work  or  supplies,  there 
must  be  some  facts  tending  to  show  that  it 
is  not  that  of  a  responsible  bidder,  or  there 
must  be  at  least  some  pretense  to  that  ef- 
fect. An  arbitrary  determination  by  such  a 
body  to  accept  the  highest  bid,  without 
any  facts  justifying  it,  cannot  have  the  eff"ect 
of  a  judicial  detennination,  and  must  be  de- 
nounced as  a  palpable  violation  of  law."  It 
was  doubtless  the  intention  of  the  plaintiff  to 
bring  this  case  wiQiin  the  doctrine  just  an- 
nounced, but  it  has  not  done  so  in  its  plead- 
ings, and  it  is  by  these  that  we  are  now 
testing  matters.     Rehearing  refused. 


DISCllETIOXAKY  POWERS  NOT  SUBJECT  TO  JUDICIAL  CONTROL.        79 


CHASE   et   al.    v.   CITY    OF    OSHKOSH. 

(51  N.  W,  500,  81  Wis.  313.) 

Supreme  Court   of  Wisconsin.     Feb.   23,   1892. 

Appeal  from  circuit  court,  Winnebago  coun- 
ty;  G.  AV.  Burnell,  Judge. 

Action  by  Lucy  Chase  and  Mary  Cliase 
against  tlie  city  of  Oslikosh.  Judgment  for 
plaintiffs.     Defendant  appeals.     Reversed. 

H.  I.  Weed,  for  appellant.  Finch  &  Bar- 
ber and  F,  Beglinger,  for  respondents. 

PIXNEY.  J.  In  the  case  of  Kimball  v.  City 
of  Kenosha,  4  Wis.  3121,  it  is  decided  that  tlie 
grantee  of  a  lot  bounded  by  a  street  or  streets 
in  a  village  platted  and  laid  out  in  conform- 
ity with  the  statute  takes  to  the  center  of  the 
street  on  which  the  lot  abuts,  subject  to  the 
public  easement;  and  this  proposition  has  been 

f  repeatedly  aftirmed  in  numerous  subsequeut 
cases,  some  of  which  are  cited  in  Andrews  v. 
Youmans,   78  Wis.  58,  47  N.   W.   304.      The 

I  right  of  the  public  to  use  the  street  for  pur- 
poses of  travel  extends  to  the  portion  set  apart 

/  or  used  for  sidewalks,  as  well  as  to  the  way 

I  for  carriages,   wagons,   etc.,  and,    in  short,   to 

/  the  entire  width  of  the  street  upon  wliich  the 

j  land  of  the  lot-owner  abuts.  As  against  the 
lot-owner,   the  city,  as  trustee  of   the  public 

I  use,  has  an  undoubted  right,  whenever  its  au- 
tliorities  see  fit,  to  open  and  tit  for  use  and 
travel  the  street  over  which  the  public  ease- 

I    ment  extends,  to  its  entire  width;   and  wheth- 

f  er  it  will  so  open  and  improve  it,  or  whether 
it  should  be  so  opened  or  improved,  is  a  mat- 

I  ter  of  discretion,  to  be  determined  by  the  pub- 
lic autliorities  to  whom  the  charge  and  control 

I  of  the  public  interests  in  and  over  such  ease- 
ments is  committed.     With  this  discretion  of 

j  the  authorities,  courts  cannot  ordinarily  inter- 
fere upon  the  complaint  of  a  lot-owner,  so 
long  as  the  easement  continues  to  exist;  and 
no  mere  nonuser,  however  long  continued,  will 
operate  as  an  abandonment  of  the  public  riglit, 
even  though,  until  needed  for  a  public  use, 
the  authorities  should  treat  the  street  as  the 
property  of  the  owner  of  the  lot.  The  public 
authorities,  representing  its  interests,  will  not 
tie  thereby  estopped  from  removing  olistruc- 

)  lions  therefrom,  and  opening  and  fitting  it  for 
public  use  to  its  entire  width.  State  v.  Leaver, 
G2  Wis.  387.  22  N.  W.  576;  Reilly  v.  City  of 
Racine,  51  Wis.  52G,  8  N.  W.  417;  Childs  v. 
Nelson,  09  Wis.  125,  33  N.  W.  587.  The  pub- 
lic use  is  the  dominant  interest,  and  the  public 
autliorities  are  the  exclusive  judges  when  and 
to  what  extent  the  street  shall  be  improved. 
Courts  can  interfere  only  in  cases  of  fraud  or 
oppression,  constituting  manifest  abuse  of  dis- 
cretion. Benson  v.  Village  of  Waukesha,  74 
Wis.  31-39,  41  N.  W.  1017;  Wright  V.  For- 
rcstal.  G5  AVis.  341.  27  \.  W.  .52;  Pontiac  v. 
Carter,  .32  :Mich.  104;  Rrusli  v.  City  of  Carbon- 
dale,  78  111.  74.  It  necessarily  follows  that  for 
the  performance  of  this  discretionary  duty  by 
the  city  officers,  in  a  reason;il)le  and  prudent 
manner,  no  action  can  be  maintamed  against 
the  city.     Alexander  v.   Milwaukee,   Iti  Wis. 


264.  It  may  well  be  that  had  the  trees  in 
question  been  cut  down  or  removed  by  some 
third  party,  not  acting  under  proper  authority 
from  the  citj',  he  could  have  been  held  liable 
to  the  plaintiffs  in  an  action  for  trespass;  and 
it  was  so  held  in  Andrews  v.  Youmans,  78 
Wis.  58,  47  N.  W.  304.  But  this  does  not  tend 
to  show  that  this  action  can  be  maintained  for  | 
cutting  and  removing  them  under  the  au- 
thority of  the  common  council  given  by  reso- 
lution to  the  aldermen  of  the  ward,  standing, 
as  they  did,  within  the  sidewalk,  even  with- 
out notice  to  the  lot-owner.  There  was  testi- 
mony that  the  plaintiffs  had  been  notified  to 
remove  the  trees,  and  thej'  had  failed  to  do  so. 
Complaint  had  been  made  for  two  years  pre- 
viously, to  the  aldermen  of  that  ward,  that  the 
trees  were  obstructions  to  the  sidewalk;  and 
it  is  not  contended  but  that  they  were  cut 
down  in  good  faith,  and  in  pursuance  of  the 
authority-  whieli  the  city  possesses  over  its 
streets  and  sidewalks.  It  was  admitted  at 
the  trial  that  the  trees  were  cut  down  by  par- 
ties acting  in  good  faith,  under  the  authority 
of  tlie  city,  and  without  malice.  It  was  the 
duty  of  the  city  to  keep  its  streets  and  side- 
walks free  and  clear  of  obstructions  for  the 
use  of  persons  traveling  over  and  along  the 
same;  and  there  can  be  no  doubt  but  that  the 
city  would  have  been  liable  in  damages  to 
any  person  traveling  along  and  over  the  walk 
in  question,  in  the  night-time,  who,  without 
fault  on  his  part,  had  been  injured  by  running 
against  these  trees,  situated  within  the  limits 
of  the  walk.  There  can  be  no  doubt  but  that 
the  common  council  had  the  right,  therefore, 
to  treat  them  as  obstructions  to  the  public 
travel,  and  a  nmsance.  and  to  abate  the  nui- 
sance in  the  manner  they  did,  to  protect  the 
public  in  the  lawful  use  of  the  sidewalk,  and 
the  city  from  liability  for  injuries  which  might 
be  .sustained  by  persons  passing  along  and 
over  it,  and  who  might  be  injured  by  such 
obstructions.  Whether  the  trees  were  obstruc- 
tions to  travel,  and  ought  to  be  removed  in 
order  to  make  the  sidewalk  reasonably  safe  for 
travel,  was,  we  think,  a  matter  within  the 
quasi  legislative  discretion  conferred  on  the 
common  council  by  the  city  charter.  The 
charter  of  the  city  gives  the  common  council, 
under  various  siibdivisiuns  of  section  3,  subc. 
6,  c.  183,  Laws  1883.  power,  by  ordinance,  res- 
olution, or  by-law,  when  it  deems  it  expedient, 
"to  prevent  the  incumbering  of  the  streets  and 
sidewalks,"  and  to  "control  and  regulate  the 
streets,  *  *  *  and  to  remove  and  abate  any 
obstructions  and  encroachments  therein,"  and 
to  "protect  the  same  from  any  encroacliment 
or  injury,"  and  "to  prevent,  prohibit,  and  cause 
the  removal  of  all  obstructions  in  and  upon 
all  streets  in  said  city;"  and  the  provisions 
of  chapter  52,  Rev.  St.,  on  the  subject  of  en- 
croachments and  obstructions  on  streets  and 
highways,  are  not  applicable,  because  special 
provisions  are  made  in  the  charter  of  tlie  city 
of  Oshkosh,  inconsistent  therewith  (Rev.  St. 
§  1317);  and  by  the  charter  of  the  city  it  is 
provided  that  "no  general  law  of  this  state, 


80 


POWERS    OF   PUBLIC   CORPORATIONS. 


contravening  the  provisions  of  the  charter, 
shall  be  considered  as  repealing,  annulling,  or 
modifying  the  same,  unless  such  purpose  be 
expresslj-  set  forth  in  such  law  as  an  amend- 
ment of  this  charter"  (Laws  18S3,  c.  183,  subc. 
14,  §  25);  and  this  provision  was  in  force 
when  the  present  revision  of  the  statutes  was 
adopted  (Laws  1877,  e.  123,  subc.  13,  §  25). 
Similar  provisions  have  existed  in  the  various 
charters  of  cities  in  this  state  from  an  early 
day. 

Inasmuch  as  the  discretion  and  judgment  of 
the  common  council  in  respect  to  these  mat- 
ters cannot  be  revi.'-i  i  by  the  court  or  jury, 
there  being  no  eviJeiiL-,'  tending  to  show  an 
abuse  of  it,  the  court  ought  not  to  have  sub- 
mitted it  to  the  jury  to  find  whether:  "(1) 
Did  said  trees  incommode  or  hinder  the  public 
use  and  enjoyment  of  said  street  or  sidewalk? 
(2)  Did  said  ti"ees  injure  said  street  or  side- 
walk, or  interfere  with  travel'?"  It  was  not 
'  seriously  contended  on  the  part  of  the  plain- 
tiffs but  that  the  city  authorities  might  au- 
thorize the  removal  of  the  trees;  but  it  was 
claimed  that  they  constituted  an  encroachment, 
and  were  not  obstructions  to  the  walk  or 
street,  and  that  they  could  not  be  removed 
witliout  a  hearing  on  notice.  An  encroach- 
imyit  is  a  gradual  entering  on  and  taking 
possession  by  one  of  what  is  not  his  own;  the 
unlawful  gaining  upon  the  rights  or  posses- 
sions of  another.  The  fencing  in  or  inclos- 
ing of  a  portion  of  a  street  or  highway  by  a 
fence  or  wall,  or  the  occupancy  of  it,  would 
be  an  encroachment;  and,  as  there  may  be 
uncertainty  as  to  the  exact  line  of  the  street 
or  highway,  it  may  be  necessaiy,  in  order  to 
remove  it,  that  notice  be  given,  so  that  the 
question  of  encroachment  may  be  first  passed 
upon  by  a  jury.  An  obstruction  is  a  blocking 
up;  filling  with  obstacles"or  impediments;  an 
impeding.  eiid)airassing,  or  opposing  the  pas- 
sage along  and  over  the  street,— and,  to  con- 
stitute it  such,  it.  need  not  be  such  as  to  stop 
travel.  The  provisions  in  the  city  charter  on 
the  subject  of  encroachments  and  obstructions 
of  streets  and  sidewalks  give  veiy  extensive 
and  comprehensive  powers  to  the  common 
council,  of  a  quasi  legislative  character,   but 


without  any  particular  directions  as  to  the 
manner  of  theh*  exercise;  and  these  powers 
are  peculiarly  adapted  to  the  needs  of  a  grow- 
ing and  populous  vihage  or  city.  They  are 
not  only  very  comprehensive  and  far-reaching, 
but  they  clearly  extend  to  the  cutting  down 
and  removal  of  the  trees  in  the  manner  adopt- 
ed in  the  present  instance,  as  they  were  man- 
ifestly obstructions  to  the  sidewalk,  although 
room  was  left  on  the  walk  for  foot  travel  to 
pass.  It  was  not  necessary,  in  order  that 
they  should  constitute  an  obstnaction,  so  as  to 
authorize  their  removal,  that  they  should  in- 
terrupt or  stop  travel.  The  case  of  State  v. 
Leaver,  62  Wis.  302,  22  N.  W.  576,  is  decisive 
on  this  subject.  It  surely  cannot  be  maintain- 
ed that  the  plaintiffs  have  the  riglit  to  plant 
and  maintain  other  trees  in  their  place  within 
the  sidewalk,  or  that  other  lot-owners  can 
plant  in  like  manner  and  maintain  trees  thus 
situated.  As  already  stated,  the  plaintiffs  had 
a  right  of  property  in  the  trees,  in  the  sense 
that  they  might  have  cut  or  removed  them,  or 
maintained  an  action  against  any  one  who  did 
so,  not  acting  under  authority  of  the  common 
council;  but  it  does  not  follow  that  they  had 
the  right  to  keep  and  maintain  them,  standing 
within  the  sidewalk,  in  detiauce  of  the  resolu- 
tion of  the  common  council,  insisting,  in  the 
interests  of  the  public,  upon  their  removal. 
The  case  of  Pauer  v.  Albrecht,  72  Wis.  416, 
39  N.  W.  771,  is  clearly  not  in  point;  for  it 
was  a  case  of  an  encroachment,  and  the  char- 
ter did  not  contain  provisions  authorizing  the 
removal  of  encroachments,  and  the  proceed- 
ings had  to  be,  if  at  all,  under  the  general 
statute.  A  permanent  obstruction,  such  asl 
trees  standing  within  a  sidewalk  or  traveled 
street,  or  stone  columns  which  may  interfere 
with  public  travel,  constitutes  per  se  a  public 
nuisance,  and  may  be  summarily  removed  by 
direction  of  the  common  council. 

The  circuit  court,  upon  the  entire  case,  ought 
to  have  directed  a  verdict  for  the  defendant. 
For  these  reasons,  and  for  error  in  refusing  tne 
instructions  asked  by  the  defendant,  the  judg- 
ment of  the  circuit  court  must  be  reversed. 
The  judgment  of  the  circuit  court  is  reversed, 
and  the  cause  is  remanded  for  a  new  trial. 


DELEGATED  POWERS  CANNOT  BE  DELEGATED. 


81 


STATE  V.   GARIBALDI.     (No.  11,019.) 

(11  South.  30,  44  La.  Aun.  809.) 

Supreme  Court  of  Louisiana.     April  4,  1892. 

Appeal  from  recorder's  court  of  Orleans; 
A.  M.  Aucoiu,  Judge. 

Prosecution  against  Louis  C.  Garibaldi  for 
the  violation  of  an  ordinance  of  New  Orleans 
prohibiting  the  establishment  of  private 
markets  within  certain  limits.  From  a  judg- 
ment on  conviction,  defendant  api>cals.  Ke- 
versed,  and  suit  dismissed.  Rehearing  re- 
fused. 

W.  J.  Waguespack  and  Joseph  F.  Poche, 
for  appellant.  Branch  K.  Miller,  for  the 
State. 

BREAUX,  J.  Tlie  lawmaking  power  hav- 
ing authorized  the  city  council  of  New  Or- 
leans to  pass  such  ordinances  for  the  govern- 
ment and  regulation  of  private  markets  as 
they  may  in  their  discretion  deem  proper, 
and  having  vested  them  Avith  authority  for 
their  enforcement,  subject  to  certain  limita- 
tions, the  city  adopted  ordinance  5748,  C.  S., 
and  amended  ordinance  5798,  prohibiting  the 
establishment  of  a  private  market  for  "the 
sale  of  meat  or  other  comestibles"  except 
fruits,  without  permission  previously  ob- 
tained on  a  petition,  with  the  written  consent 
of  a  majority  of  the  property  owners  within 
GOO  feet  of  the  place  selected  to  open  a  pri- 
vate market;  and  further  prohibiting  said 
market  unless  the  building  has  proper  flag- 
ging and  ventilation,  and  measures  not  less 
than  10  by  15  feet  in  area  and  IG  feet  in 
height,  and  with  no  dwelling  on  either  side 
nearer  than  10  feet.  From  the  sentence  and 
judgment  linding  him  guilty  of  having  vio- 
lated the  said  ordinances,  and  condemning 
him  to  pay  a  fine  of  if  10,  defendant  appeals. 

The  following  are  the  agreed  facts:  The 
defendant  carries  on  a  private  market  with- 
out the  permission  of  the  council,  in  a  build- 
ing measuring  20  feet  in  width  by  30  feet  in 
depth,  having  three  openings  in  front,  11  feet 
in  height  by  4  in  width,  and  two  doors  in 
the  rear,  10  feet  high  by  3%  feet  wide,  open- 
ing on  a  yard  40  feet  in  depth.  The  floor  of 
the  building  is  of  wood.  It  is  a  three-story 
building,  55  feet  in  height,  the  lower  ceiling 
being  11  feet  from  the  floor.  It  is  one  of  a 
continuous  row  of  buildings  with  ceiling 
about  the  same  height,  separated  by  a  single 
wall  between  each  tenement.  On  one  side  of 
the  private  market  is  a  boarding  house  near- 
er than  10  feet,  and  on  the  other  a  ware- 
house in  which  goods  are  stored.  It  is  in  a 
populous  district  of  the  city.  The  defend- 
ant has  paid  his  license.  It  is  further  ad- 
mitted that  he  has  complied  with  the  ordi- 
nances relative  to  private  markets  preceding 
those  imder  which  he  is  prosecuted,  and  that 
he  established  his  said  private  market  long 
prior  to  the  adoption  of  the  said  ordinances. 
Testimony  was  admitted  to  prove  that  wood- 
en flooring  is  preferable,  as  being  more 
ABB.CORP.— 6 


healtliy  to  stand  on  Uian  a  flaggmg.  It  was 
shown  that  slats  or  planks  are  used  to  stand 
on  on  flag  floors.  The  plaintiff  controverted 
this  testimony,  and  examined  witnesses,  who 
testified  with  some  particularity  with  refer- 
ence to  the  unhealthiness  of  wooden  floors, 
and  their  Inferiority  in  many  respects  to 
pavement,  in  a  market  house.  The  defend- 
ant's plea  in  bar,  tiled  preliminarily,  was 
overruled,  in  which  he  urged  that  the  ordi- 
nances under  which  the  prosecution  was  insti- 
tuted confer  arbitrarj'  power  on  certain  prop- 
erty owners  to  give  or  to  withhold  their  con- 
sent, and  are  an  unjust  discrimination,  a 
monopoly,  and  grant  of  exclusive  privilege,  in 
violation  of  the  constitutions  of  the  United 
States  and  of  this  state;  that  they  are  pro- 
liibitive  and  favorable  to  the  lessees  of  the 
stalls  in  the  public  markets;  that  the  ordi- 
nances themselves  violate  the  act  of  the  leg- 
islature No.  IIG  of  18SS,  authorizing  the  gov- 
ernment and  regulatit'U  of  private  markets; 
that  to  compel  him  to  carry  on  his  private 
market  in  a  building  with  paved  floor,  and 
of  the  dimensions  required  by  the  ordinan- 
ces, is  unreasonable  and  oppressive,  ultra  vi- 
res; that  his  private  market  was  authorized 
by  ordinance  4145,  and  his  rights  as  the  keep- 
er of  a  private  market  cannot  be  affected  by 
subsequent  ordinances.  The  legislature  has 
often  delegated  authority  to  municipal  cor- 
porations to  impose  restraint  upon  the  vend- 
ing of  fresh  meats  and  vegetables.  It  has 
frequently  been  the  cause  of  litigation,  but  it 
has  generally  been  held  to  be  reasonable. 
AVith  reference  to  private  markets,  the  pow- 
er to  prohibit  their  establishment  within  a 
certain  number  of  squares  of  the  public  mar- 
kets was  ably  opposed  in  the  courts.  It  is 
now  settled  that  there  was  no  ground  of 
complaint  of  the  violation  of  a  private  right. 
The  right  of  the  sovereign  to  exercise  the 
police  power  to  maintain  the  cleanliness  and 
salubrity  of  a  city  does  not  admit  of  ques- 
tion. Markets  require  restraint,  to  prevent 
their  becoming  injurious  to  the  public.  All 
regulations  requiring  ventilation  of  the 
building  in  M'hich  markets  are  opened,  about 
laying  of  floors,  and  ordering  that  reasonable 
space  be  provided  between  the  buildings, 
adopted  in  the  interest  of  public  health,  are 
unobjectionable  if  not  arbitrary,  and  if  they 
do  not  discriminate  against  private  riglits. 
If,  however,  the  defendant  were  to  comply 
with  all  the  regulations  emanating  from  the 
council  relating  to  private  markets,  to  which 
we  have  just  referred,  he  would  still  have  to 
present  a  petition  to  the  council,  accom- 
panied by  the  written  consent  of  a  majority 
of  the  property  owners  within  GOO  feet  of 
the  place  selected  to  open  a  market,  other- 
wise it  would  not  bo  possible  for  him  to  con- 
tinue his  business.  The  consent  of  certain 
property  owners  is  made  an  absolute  condi- 
tion to  granting  the  right.  The  council's 
discretion  in  governing  and  regulating  pri- 
vate markets  does  not  authorize  them  to 
confer  the  right  on  the  majority  of  property 


82 


POWERS   OF  PUBLIC   CORPORATIONS. 


owners  to  determine  whether  a  proposed 
market  shall  be  opened.  The  special  law 
under  which  the  ordinances  were  adopted 
provides  that  the  council  shall  not  prohibit 
private  marliets  within  the  populous  dis- 
tricts of  the  city.  It  may  be  that  the  proper- 
ty owners  will  refuse  their  signatures  with- 
out sufficient  cause,  and  thereby  prevent 
the  establishment  of  a  private  marliet,  de- 
spite the  rights  guarantied  under  the  terms 
of  the  statute.  Certain  police  power  is  vest- 
ed in  the  council  to  make,  ordain,  and  es- 
tablish all  manner  of  wholesome  and  reason- 
able ordinances  not  repugnant  to  the  consti- 
tution as  they  shall  judge  to  be  for  the  good 
and  welfare  of  the  public.  The  responsi- 
bility is  with  them,  and  the  authority  cannot 
be  delegated  to  a  majority  of  property  own- 
ers in  a  locality.  They  are  the  trustees  ap- 
pointed to  legislate  and  administer  in  their 
respective  capacity,  and  cannot  divest  them- 
selves of  their  responsibilities  by  requurhig  that 


the  consent  of  property  owners  be  obtained  I 
to  open  a  legitimate  business.     Cooley,  Const  ' 
Lim.  p.  249.     The  representative  system  is  t 
a  substantive  and  valuable  institution  in  or-  I 
ganized  politics.     It  must  maintain  its  pro- 1 
tecting    authority    against    unjust    discrimina-j 
tion  and  arbitrary  action.     The  legislative . 
powers  delegated  are  regarded  as  trusts,  and  are  | 
not  subject  to  be  delegated  by  those  to  whom 
it  is  confided.     15  Am.  &  Eng.  Enc.  Law,  ' 
p.  1043.     "An  ordinance  of  a  municipal  cor- 
poration, which  violates  any  of  the  recog- 
nized principles  of  legal  and  equal  rights,  is 
necessarily  void  so  far  as  it  does  so."     State 
V.  Mahner,  43  La.  Ann.  496,  9   South.  480. 
One  of  the  conditions  imposed  being  illegal, 
the  plaintiff  cannot  maintain  its  judgment. 
It  is  therefore  ordered,  adjudged,   and  de- 
creed that  the  judgment  appealed  from  be 
annulled,  avoided,  and  reversed,  and  the  suit 
of  the  city  against  the  defendant  be  dis- 
missed, with  costs  of  both  courts. 


DELEGATED  POWERS  CANNOT  BE  DELEGATED. 


83 


TOWN  OF  TRENTON  v.  CLAYTON  et  al. 

(50  Mo.  App.  535.) 

Court  of  Appeals  of  Kansas  City.     June  13, 
1892. 

O.  M.  Shauklin  and  MoDongal  &  Sebree,  for 
appellant,     ilarber  &  Knight,  for  respondents. 

GILL,  J.  From  the  agi-eed  statement  of 
facts,  it  appeai-s  that  Davis  &  Co.  were  deal- 
ers in  general  merchandise,  with  stores  at 
Trenton,  Mo.,  and  Atchison,  Kan.  The  defend- 
ants were  employed  as  salesmen;  and,  in  the 
effort  to  sell  the  goods  of  their  employers, 
they  took  samples  of  \-arious  articles,  visited 
the  different  residences  in  Trenton,  and  se- 
cured written  orders  for  the  goods  of  Davis  & 
Co.  The  merchandise  was  subsequently  de- 
livered and  paid  for.  The  goods  carried  around 
were  not  sold  nor  offered  to  be  sold,  but  were 
simply  used  to  exhibit  to  customers  the  char- 
acter of  goods  kept  and  for  sale  by  Davis  & 
Co. 

The  defendants  were  charged  with  selling 
goods  as  peddlers  in  the  town  of  Trenton  with- 
out a  license,  contrary  to  the  provisions  of  an 
ordinance  of  said  town  relating  to  peddlers. 
Section  1  of  said  ordinance  reads  thus: 

"Sec.  1.  Any  person  who  shall  engage  in  sell- 
ing any  drugs,  medicines,  dry  goods,  groceries 
or  personal  property  or  merchandise,  except 
books,  maps,  charts  and  stationery,  by  going 
from  place  to  place  to  seU  the  same,  or  shall 
sell  the  same  by  first  taking  an  order  and  aft- 
erwards delivering  the  article,  either  in  per- 
son or  by  an  agent,  or  shall  sell  the  same  by 
public  out-cry  in  the  streets  of  said  town,  is 
declared  a  peddler."  Sections  2  and  3  pro- 
hibit any  one  from  acting  or  dealing  as  peddler 
unless  permission  therefor  be  obtained  from  the 
mayor  of  said  town.  Section  4  provides  as 
follows: 

"See.  4.  The  mayor  Is  hereby  authorized  to 
grant  permission  to  any  worthy  resident  of  the 
town  of  TYenton  to  deal  as  a  peddler  upon 
payment  to  the  marshal  of  a  license  fee  to  be 
fixed  by  the  mayor  on  granting  the  same,  and 
the  amount  of  license  in  all  eases  shall  be  fixed 
by  the  mayor,  provided  that  the  license  so 
fixed  shall  in  no  case  be  less  than  ipl,  nor  more 
than  $100,  for  every  period  of  six  months  or 
fraction  thereof." 

Section  5  provides  a  penalty  for  violation  of 
the  terms  of  the  ordinance. 

The  case  was  submitted  to  the  circuit  court 
on  an  agreed  statement  incorporating  substan- 
tially the  foregoing  facts.  There  was  a  judg- 
ment for  defendants,  and  the  town  has  ap- 
pealed. 

The  ordinance  which  forms  the  basis  of  this 
proseoution  is,  in  our  opinion,  clearly  invalid, 
and  for  more  than  one  reason.  In  the  first 
place,  the  town  coimcil  in  the  ordinance  quot- 
ed has  gone  beyond  the  powers  delegated  by 
the  legislafure.  By  the  charter  of  Ti-enton 
(Laws  1872,  p.  481)  it  is  enacted  that  "the  town 
•council  shall  have  power,  within  said   town, 


by  ordinance,  not  repugnant  to  the  laws  of  the 
land,  *  *  *  to  license,  tax,  regulate  or  sup- 
press •  •  *  peddlers,"  etc.  It  is  well  un- 
derstood that  municipal  corporations  can  ex- 
ercise only  such  powei-s  of  legislation  as  are 
given  it  by  the  law-making  power  of  the  state. 
The  grants  of  such  powei-s  are  quite  strictly 
consti-ued,  and  "any  fairly  reasonable  doubt 
concerning  the  existence  of  power  is  resolved 
by  the  courts  against  the  coiiwration,  and  the 
power  is  denied."  1  Dill.  Mun.  Corp.  (4th  Ed.) 
§  89.  As  the  municipal  corporation  cannot 
legislate  regarding  any  subject-matter  unless 
so  authorized  by  the  state,  so  is  the  coii^ora- 
tion  powerless  to  extend  or  widen  the  scope 
of  its  powers  by  the  arbiti'ary  and  unauthor- 
ized definition  of  words  or  terms,  so  as  to  in- 
clude more  than  was  intended  by  the  legisla- 
ture. 

These  remarks  are  suggested  by  a  considera- 
tion of  section  1  of  the  above-quoted  ordinanoe, 
whereby  the  town  council  of  Trenton  has  at- 
tempted, by  extending  the  meaning  of  peddler, 
to  widen  the  scope  of  its  authorized  legisla- 
tion. Peddler,  as  meant  by  the  legislature,  in 
granting  powers  to  the  corporation  of  Trenton, 
included  only  such  persons  as  "shall  deal  in  the 
selling  of  merchandise  (and  other  articles)  by 
going  from  place  to  place  to  sell  the  same," 
etc.  (Rev.  St.  1889,  §  7211);  and  this  we  held 
in  State  v.  Hoffman,  50  Mo.  App.  585,  did  not 
include  commercial  agents  or  drummers,  such 
as  were  these  defendants.  However,  the  town 
council  of  Trenton  has,  by  the  ordinance  al)ove, 
sought  to  regulate  or  license  other  and  differ- 
ent employments,  by  extending  the  meaning  of 
peddler,  as  used  and  understood  by  the  legis- 
lature, by  adding  the  words,  "or  shall  sell  the 
same  by  first  taking  an  order  and  afterwards 
delivering  the  article,  either  in  person  or  by 
an  agent,  or  shall  sell  the  same  by  public  out- 
cry in  the  streets  of  said  town." 

Again,  the  ordinance  in  question  is  objection- 
able, in  that  it  assumes  to  transfer  or  dele- 
gate to  the  mayor  a  power  given  to  the  council. 
The  charter  of  Ti'enton,  as  already  quoted, 
reposed  authority  in  the  town  council  by  or- 
dinance to  license,  etc.,  peddlers.  This  ordi- 
nance turns  over  the  entire  matter  to  the  ca- 
price or  discretion  of  the  mayor.  It  leaves  the 
granting  or  not  gi-anting  peddlers'  licenses — 
to  whom,  for  what  period,  and  for  what  cost- 
altogether  with  the  town  mayor.  "The  princi- 
ple is  a  plain  one,  that  the  powers  or  trusts 
devolved  by  law  or  charter  upon  the  council 
or  governing  body,  to  be  exercised  by  it  when 
and  in  such  manner  as  it  shall  judge  best,  can- 
not be  delegated  to  others."  Neither  can  this 
ordinance  find  any  support  from  the  thirteenth 
clause  of  plaintiffs  charter,  which  empowers 
the  council  "to  pass  all  such  ordinances  as  may 
be  expedient  in  maintaining  the  peace,  good 
government,  health,  and  welfare  of  the  town." 
The  authority  to  pass  such  ordinance  must  af- 
firmatively appear  in  the  charter.  It  is  not 
to  be  inferred  from  tenus  of  such  doubtful  im- 
port.    City  of  St.  Paul  v.  StuUz  (Minn.)  22  N. 


84 


POWERS    OF   PUBLIC   CORPORATIONS. 


W  634;  Cape  Girardeau  v.  Fougeu,  30  Mo. 
App.  557.  It  follows,  then,  from  the  forego- 
ing considerations,  that  the  judgment  of  the 


lower  court  should  be  affirmed.  It  is  so  or- 
dered. SMITH,  P.  J.,  concurs  in  this  opinion^. 
ELLISON,  J.,  concurs  in  the  result. 


EXTENT  AND  NATURE  OF  POWERS  GRANTED. 


85 


TAYLOR  et  al.  v.  BAY  CITY  ST.  RY.  CO. 
(45  N.  W.  335,  80  Mich.  77.) 

Supreme  Court  of  Mieliigaa.     April  11,  1890. 

Appeal  Irom  circuit  court.  Bay  county,  in 
^•liuucery;    George  T.  Cobb,  Judge. 

Bill  for  injunction  by  Bobbins  B.  Taylor 
iind  others  against  tlie  Bay  City  Street  Rail- 
way Comi)auy.  Decree  for  defendant  and 
complainants  appeal. 

T.  A.  E.  Weadock,  for  appellants.  Hatcli 
&  Cooley,  for  appellee. 

GRANT,  J.  The  defendant  was  organized 
February  21,  18G5,  under  an  act  of  the  legis- 
lature providing  for  the  organization  of  train- 
railway  companies,  enacted  in  1855.  How. 
iSt.  c.  94.  This  act  Avas  amended  in  18G1  by 
adding  two  new  sections.  Laws  18G1,  p.  11. 
This  amendment  provided  that  it  should  be 
competent  for  parties  to  organize  companies 
under  the  act  to  construct  and  operate  rail- 
wiij-s  in  and  through  the  streets  of  any  town 
or  city  in  the  stiite,  and  that  they  should  have 
the  exclusive  right  to  use  the  same,  upon  ob- 
taining the  consent  of  the  municipal  authori- 
ties of  such  town  or  city.  A  further  amend- 
ment, in  1SG7,  provided  that,  after  such  con- 
sent was  given  and  accepted,  such  municipal 
authorities  should  make  no  regulations  or  con- 
ditions whereby  the  rights  or  franchises  so 
granted  should  be  desti-oyed,  or  um-easouably 
Impaired,  or  such  company  or  corporation  be 
deprived  of  the  right  of  constructing,  main- 
taining, and  operating  such  railway  in  the 
street  in  such  consent  or  grant  named,  pur- 
suant to  the  terms  thereof.  Bay  City  was  in- 
corporated by  special  act  of  the  legislature  in 
1805,  taking  effect  March  21.  Laws  1805,  p. 
735.  The  charter  provided  that  the  common 
council  should  have  power  to  grant  charters, 
licenses,  and  privileges  to  companies,  coi*po- 
rations  or  persons  for  the  consti'uction  of 
street  railways  on  the  streets  of  said  city.  In 
1809  the  charter  of  Bay  City  was  amended. 
2  Laws  1809,  p.  501.  Section  98  of  this  act 
provided  tliat  the  common  council  should  have 
power  to  authorize  the  ninuing  of  railroads 
and  street  railways  in  the  streets  of  said  city 
upon  condition  that  tlie  owners  of  the  lots  ad- 
joining, and  persons  interested  therein,  should 
receive  compensation  therefor.  This  act  also 
conferred  other  powers  of  control  over  such 
railways  which  were  not  confen'ed  by  the  act 
(if  1S(m,  but  it  is  unnecessary  here  to  specify 
them.  This  provision  has  been  retained  in 
the  charter  ever  since.  December  14,  1804, 
the  common  council  of  the  village  of  Bay  City 
passed  an  ordinance  conveying  to  certain  per- 
sons therein  named,  who  then  proposed  to  oi"- 
ganlze  a  corporation  under  the  train  railway 
Act,  above  mentioned,  the  right  to  use  all  the 
streets  in  the  village  of  Bay  City  or  its  suc- 
cessor, exclusive  of  every  other  person  or  cor- 
poration, for  the  purpose  of  constructing  and 
operating  railways  thereon.  It  provided  that 
cai's  should  be  drawn  by  animals  or  by  steam. 


made  rcgiilations  for  the  running  of  trains, 
etc.,  and  provided  that  the  common  council, 
when  deeming  it  for  the  interest  of  the  vil- 
lage or  its  successor,  might  order  the  construc- 
tion of  a  railway  on  any  street,  and  the  cor- 
poration should  huild  the  same  within  two 
years  after  being  notified,  and  in  default  there- 
of the  council  might  declare  the  grant  void  as 
to  such  street.  The  defendant  organized,  as 
above  stated,  in  February,  1805,  and  during 
that  season  laid  tracks,  and  commenced  the 
operation  of  its  road,  extending  the  same  from 
time  to  time  as  the  common  coimcil,  and  the 
requirements  of  the  public,  demanded.  July 
5,  1887,  the  common  council  adopted  resolu- 
tions requiring  the  defendant  to  construct  a 
line  of  railway  on  Third  street,  and  some  oth- 
er streets  mentioned.  On  June  5,  1888,  the 
common  council  appointed  a  committee  to 
draft  certain  amendments  to  the  street  rail- 
way ordinance.  They  had  a  consultation  with 
the  proper  officers  of  the  defendant,  and  on 
June  25th  made  a  written  report  stating  that 
the  defendant  proposed  to  huild  a  track  on 
Third  street,  between  Water  street  and  Wash- 
ington street,  and  recommended  that  the  proi> 
osition  of  the  company  be  accepted.  The  re- 
port was  adopted,  and  thereupon  the  defend- 
ant immediately  commenced  the  work  of  lay- 
ing the  track. 

The  complainants  are  the  owners  of  sep- 
arate lots  on  Third  street,  and  the  buildings 
situated  thereon,  used  for  business  purposes. 
Upon  the  commencement  of  the  work  the  com- 
plainants imited,  and  tiled  the  bill  in  this  case, 
claiming  that  the  construction  of  the  road 
would  be  a  damage  to  their  property;  that 
this  street  was  not  wide  enough  for  the  busi- 
ness then  being  done  upon  it;  that  no  compen- 
sation had  been  paid  or  offered  to  any  of  the 
complainants,  nor  any  steps  taken  to  condemn 
a  right  of  way  through  said  street,— and 
prayed  for  an  injunction  to  restrain  the  con- 
struction of  the  road.  A  preliminaiy  injunc- 
tion was  granted  by  the  court  below,  which 
was  set  aside  upon  the  filing  of  the  answer. 
The  case  was  then  heard  upon  pleadings  and 
proofs,  the  bill  dismissed,  and  complainants 
appealed.  The  testimony  upon  the  question 
of  damages  is  very  conflicting.  It  is  unnec- 
essary to  discuss  it  here;  for,  if  the  complain- 
ants are  entitled  to  recover  damages,  they  must 
be  left  to  proceedings  under  the  statute  to  de- 
termine what  damages,  if  any,  they  have  in- 
dividually sustained  by  the  construction  of  the 
road. 

1.  Complainants  were  alike  affected  by  the 
construction  of  this  road.  They  were  alike 
intei-ested  to  restrain  its  construction.  Their 
interests  were  therefore  common.  There  was 
but  one  object  to  be  accomplished,  and  no  ne- 
cessity existed  for  a  multiplicity  of  suits.  The 
defendant  was  not  prejudiced  by  the  joinder 
of  complainants.  We  see  no  objection  to  par- 
ties joining  in  a  suit,  the  sole  purpose  of  which 
is  to  obtain  an  injunction  to  restrain  the  com- 
mission of  an  act  threatened  by  one  party,  and 
!  alike  injurious  to  the  interests  of  aU. 


86 


POWERS    OF   PUBLIC   CORPORATIONS. 


2.  The  defendant  contends  that,  by  the  ordi- 
nance of  18G4,  and  the  legislation  authorizing 
it,  it  acquired  the  fixed  and  vested  right,  for  a 
period  of  30  years,  to  use  the  streets  for  the 
pui-pose  of  constructing  and  using  a  street 
railway  without  compensating  adjoining  own- 
ers, and  that  any  subsequent  legislation  re- 
quiring it  to  compensate  in  damages  for  any 
injuries  sustained  thereafter  by  the  construc- 
tion of  new  tracks  is  void  as  impairing  the 
obligation  of  contracts.  It  becomes,  there- 
fore, important  to  determine  the  power  confer- 
red by  the  legislature  upon  the  common  coun- 
cil of  Bay  City.  The  council  can,  of  course, 
confer  no  greater  right  upon  the  defendant 
^  than  is  authorized  by  its  charter.  Municipal 
corporations  derive  their  sole  source  of  power 
from  legislative  enactments.  The  rule  has 
'  been  long  and  unquestionably  established  that 
municipal  corporations  are  limited  to  those 
powei-s  which  are  granted— First,  in  express 
words;  second,  necessarily  incident  to  the 
powers  expressly  gi'anted;  and,  third,  those 
which  are  essential  and  indispensable  to  the 
declared  objects  and  purposes  of  the  corpora- 
tion. 1  Dill.  Mun.  Coi-p.  §  89.  By  the  vil- 
lage charter,  the  common  council  was  author- 
ized to  lay  out  and  establish,  vacate,  open, 
make,  and  alter  such  streets  as  they  might 
deem  necessary  for  the  public  convenience. 
No  mention  is  made  in  the  act  of  train  or  street 
railways.  The  act  incorporating  the  city  pro- 
vided that  all  the  acts  and  ordinances  of  the 
common  council  of  the  village  of  Bay  City  not 
Inconsistent  with  the  laws  of  this  state  shall 
remain  in  full  force  until  changed  by  the  com- 
mon council  of  the  city;  and  the  same  section 
gives  the  power  to  gi'ant  charters  to  street 
railway  corporations.  These  charters  do  not 
In  express  tenns  confer  upon  the  council  any 
such  power  as  is  now  contended  for.  If  it 
exists  at  all,  therefore,  it  must  be  by  implica- 
tion. The  power  to  grant  immunity  to  such 
corporations  from  legislative  regulation  and 
I  control  is  an  important  one.  A  village  of  a 
.  few  hundred  inhabitants  may  in  much  less 
than  30  years  grow  to  a  city  of  many  thou- 
\  Bands.  Bay  City  well  illustrates  this  fact. 
,  What  in  the  one  would  cause  no  damage  might 
'  in  the  other  cause  great  damage.     The  vil- 


lage council  cannot  well  provide  regulations  / 
and  ordinances  applicable  to  a  large  city.     It 
is,  therefore,  highly  important  that  the  legis-/ 
latm-e  should  retain  the  power  to  pass  enact-  / 
ments  for  the  control  of  these  quasi  public  cor- 
porations  suitable   to    the    changed    state   of  j 
affairs.     Those    who    claim    immimity    from 
such  control  must  be  able  to  point  to  the  clear  / 
enactment  of  the  statute  establishing  it.     In 
the  case  at  bar,  as  already  stated,   no  such 
express  power  can  be  pointed  out;   and  it  was 
neither  necessary,  essential,  nor  indispensable 
to  enable  the  municipal  corporation  to  carry 
out  the  objects  and  purposes  for  which  it  was 
created.    It  is  clearly  within  the  power  of  the    ' 
legislature  to  provide  that  street  railway  cor- 
porations shall  pay  such  damages  to  owners 
of  abutting  property  in  front  of  which  they  / 
construct  their  road  as  this  construction  will  . 
cause.     It  follows,  therefore,  that  the  defend-  f 
ant  accepted  its  charter  subject  to  the  right  of 
the  legislature   to  prescribe  conditions   under 
which  it  might  thereafter  obtain  the  use  of 
the  streets  of  the  city  for  the  construction  of 
new  lines.     The  act  of  18G9,  above  mentioned, 
expressly  limited  the  power  of  the  council  to- 
authorize  the  running  of  street  railways  in  the 
streets  of  the  city  upon  the  condition  of  com- 
pensation to    owners    of    the   lots    adjoining. 
The  act  of  the  legislature  of  1881,  revising  the 
charter  of  Bay  City,  provided  that  the  method 
of  arriving  at  the  compensation  to  be  paid  ta 
the  lot-owners  shall  be  the  same  as  provided 
by  the  general  railroad  laws  of  the  state.   The 
defendant  was  subject  to  the  above  provis'ions 
in  making  the  extension  of  its  road  now  in 
dispute. 

The  conclusion  above  reached  renders  it  un- 
necessary to  determine  the  other  questions- 
raised  in  the  case,  and  we  pass  no  opinion 
upon  the  liability  of  the  defendant  at  the  com- 
mon law.  The  decree  must  be  reversed,  with 
the  costs  of  both  courts,  and  decree  entered 
here  restraining  the  defendant  from  the  use 
of  that  part  of  its  road  extending  on  Third, 
street  between  Water  and  Washington  streets, 
until  it  has  complied  with  the  statute  requir- 
ing condemnation  proceedings,  but  giving  a 
reasonable  time  for  that  purpose.  The  other 
justices  concurred. 


EXTENT  AND  NATURE  OE  POWERS  GRANTED. 


87 


TOWN  OF  NEWPORT  v.  BATES VILLE  & 
B.  RY.  CO. 

(2i  S.  W.  427,  58  Ark.  270.) 

Supreme  Court  of  Arkansas.     Dec.  9,  1893. 

Appeal  from  circuit  court,  Jackson  county; 
James  W.  Butler,  Judtje. 

Action  by  the  Batc^ville  &  Brinldey  Rail- 
way Company  apaiust  the  town  of  Newport 
on  a  contract  for  the  construction  of  a  levee. 
B'rom  a  juclj,'ment  for  plaintiff,  defendant  ap- 
peals.    Reversed. 

John  M.  Moore,  for  appellant.  U.  M.  & 
G.  B.  Rose,  for  appellee. 

HUGHES,  J.  The  facts  in  this  case  are 
substantiallj'  as  follows:  The  toAvn  of 
Newport  made  a  contract  with  the  Bates- 
ville  &  Brinkley  Railway  Company  to  con- 
struct a  levee  on  two  sides  of  the  town  to 
protect  it  from  overflow,  and  was  to  pay  the 
company  therefor,  in  the  warrants  of  the 
town,  $10,000,  and  the  railway  company  was 
to  have  the  privilege  of  using  the  levee  as 
a  roadbed  for  its  railway.  One  line  of  the 
levee  was  completed,  accepted,  and  paid  for 
by  the  town,  after  which  it  declined  and  re- 
fused to  accept  and  pay  for  the  other  line  of 
the  levee,  one  of  these  lines  bcuiir  north, 
and  the  other  south,  of  the  town.  The  com- 
pany having',  as  it  contends,  completed  the 
levee  according  to  the  contract,  brought  this 
suit  to  recover  a  balance  of  $4,480,  which  it 
alleges  to  be  due  on  the  conti-act.  There  is 
also  a  quantum  meruit  count  in  the  com- 
plaint, for  work  and  labor  done,  and  mate- 
rials furnished,  in  constructing  a  levee  at  the 
Instance  and  request  of  the  town.  The  town 
answered,  admitting  that  it  attempted  to  ex- 
ecute the  contract,  but  says  the  contract  was 
made  for  the  purpose  of  inducing  the  rail- 
way company  to  locate  and  construct  its 
road  through  the  town,  and  to  establish  one 
of  its  principal  stations  there,  and  denies  the 
power  of  the  town  to  make  the  contract.  It 
also  denies  that  the  levee  was  constriicted 
for  its  use,  or  at  its  request,  and  says  that  it 
was  constructed  for  the  use  of  the  railway 
company.  It  also  says  that  the  work  was 
not  done  according  to  contract;  and  that  the 
work  and  materials  of  the  railway  com- 
pany were  not  of  the  value  alleged;  and 
that  it  had  paid  full  value  for  all  work  done 
and  materials  furnislied.  The  cavi.se  was  sub- 
mitted to  a  jury  upon  the  evidence  in  the 
case,  and  instructions  by  the  court  recogniz- 
ing power  in  the  town  council  to  make  a  con- 
tract to  construct  a  levee.  All  proper  ex- 
ceptions were  preserved  to  the  instructions 
given  by  the  court,  and  to  the  court's  refusal 
of  instructions,  in  effect  denying  power  in  the 
town  council  to  make  the  contract.  The 
fifth  instruction  given  by  the  court,  to  which 
exception  was  saved,  is  as  follows:  "The 
jury  are  instnicted  that  if  they  find  from 
the  evidence  in  this  case  that  the  defendant 


enteretl  into  a  contract  with  the  plaintiff  to 
pay  it  $10,000  in  town  wan-ants  for  the  con- 
sti'uction  of  a  levee  described  in  the  written 
contract  made  with  the  defendant,  together 
with  its  crossings  and  drains,  and  under  that 
contract  the  plaintiff,  with  the  full  knowl- 
edge and  consent  of  the  defendant,  under 
the  supervision  of  its  council  or  a  committee 
appointed  by  it,  proceeded  to  construct  said 
levee  under  said  contract,  with  the  privilege 
of  using  it  as  a  roadbed  or  railroad  track, 
and  to  keep  the  same  in  proper  repair,  and 
the  plaintiff  did  so  construct,  use,  and  keep 
the  same  in  repair,  so  far  as  permitted  by  the 
defendant,  they  will  find  for  the  plaintiff 
whatever  may  be  shown  to  be  due  and  un- 
paid under  said  contract."  The  j\iry  found 
specially  that  the  railway  company,  in  con- 
structing the  levee  around  the  town,  had 
complied  substantially  with  the  contract  siied 
iq)on,  and  returned  a  verdict  for  the  railway 
company.  The  appellant  seeks  to  reverse  this 
judgment  on  appeal  to  this  court 

Had  the  incor]3orated  town  of  Newport 
the  power  to  make  the  contract  which  was 
the  foundation  of  this  suit?  In  1  Dill.  Mim. 
Corp.  §  89,  it  is  said:  "It  is  a  general  and 
imdisputed  proposition  of  law  that  a  mu- 
nicipal corporation  possesses  and  can  exer- 
cise the  following  powers,  and  no  others: 
First,  those  gi-axited  in  express  words;  sec- 
ond, those  necessarily  or  fairly  implied  in  or 
incident  to  the  powers  expres.sly  granted; 
third,  those  essential  to  the  declared  objects 
and  purposes  of  the  corporation,  not  simply 
convenient,  but  indispensable.  Any  fair,  rea- 
sonable doubt  concerning  the  existence  of 
power  is  resolved  by  the  coiu-ts  against  the 
corporation,  and  the  power  is  denied."  In 
Spaulding  v.  City  of  Lowell,  2.3  Pick.  71,  74, 
Chief  Justice  Shaw,  in  speaking  of  municipal 
and  public  coii^orations,  says:  "They  can  ex- 
ercise no  powers  but  those  which  ai'e  con- 
feiTed  upon  them  by  the  act  by  which  they 
are  constitute<l,  or  such  as  are  necessary  to 
the  exercise  of  their  corporate  powers,  the 
performance  of  their  corporate  duties,  and 
the  accomplishment  of  the  purposes  of  their 
association."  "It  is  proper,  too,  that  these 
powers  should  be  strictly  construed,  consider- 
ing with  how  little  care  chartered  privileges 
are  these  days  granted."  Bank  v.  Town  of 
Cliillicothe,  7  Ohio,  pt.  2,  pp.  31,  35;  Port 
Huron  v.  McCall,  46  Mich.  50.5,  10  N.  W.  23, 
"They  act,  not  by  any  inherent  right  of  leg- 
islation, like  the  legislatin-e  of  the  state,  but 
their  authoritj'  is  delegated,  and  their  powers, 
therefore,  must  be  strictly  pursued."  Is  there 
any  express  grant  of  power  to  an  incor- 
porated town  to  make  a  contract  for  the 
building  of  a  levee?  Section  740,  ]Mansf. 
Dig.,  provides  that  "the  city  council  shall 
have  power  to  establish  and  construct  and 
to  regulate  landing  places,  levees,"  etc. 
Section  8  of  the  incorporation  act  of  March 
9,  1875.  This  refers  to  cities  of  the  first 
and  second  class,  but  not  to  incoiiwrated 
towns.     Their   powers   are   not   always    the 


88 


POTN'ERS    OF  PUBLIC   CORPORATIONS. 


same.  In  enumerating  the  powers  of  mu- 
nicipal corporations  of  all  classes  in  section 
IS  of  the  act  of  March  9,  1875,  the  power 
to  construct  levees  is  not  given,  though,  as 
wo  have  seen,  it  is  given  in  section  8  of  the 
act  to  cities  of  the  first  and  second  class. 
It  follows,  therefore,  that  there  is  no  express 
gi-ant  of  power  to  incorporated  towns  to  con- 
struct levees. 

Construing  the   powers  of   mimicipal  cor- 
porations   strictly,    does    it    appear    beyond 
"any  fair,  reasonable  doubt"  that  the  power 
of  an  incorporated  town  to  make  a  contract 
for  the  construction  of  a  levee  exists?     Is 
such   power    "necessarily    or    fairly    implied 
in    or    incident    to    the    powers    expressly 
granted."  or  is  such  a  power   "essential  to 
the   declared    objects    and    pm-poses   of    the 
corporation,   not  simply  convenient,  but   in- 
dispensable?"   It  does  not  appear  to  us  that 
it   is  necessary   that   an   incorporated    town 
should   possess '  such   a   power,    in   order   to 
the  exercise  of  its  corporate  powers,  the  per- 
formance   of    its   corporate   duties,    and    the 
accomplishment  of   the   purposes   of   its   or- 
ganization.    Unless    such    is    the    case,    the 
power    is    not    implied    from    the    grant    of 
general    powers    to    an    incorporated    town. 
Spaulding   v.    City   of   Lowell,   23   Pick.   71, 
74.       No    "long-estal)lislied    and    well-settled 
usage"  appears  to  have  existed  with  incor- 
porated towns  to  exercise  the  power  to  con- 
struct levees.    In  Minturn  v.  Larue,  2.3  How. 
»  435,    the   court   said:      "It   is   a   well-settled 
rule  of  construction   of   grants  by   the   leg- 
islature to  corporations,   whether   public   or " 
private,    that  only   such   powers  and   rights 
can  be  exercised  under  them  as  are  clearly 
1    comprehended  within  the  words  of  the  acts, 
'    or  derived  therefrom  by  necessary  (fair  and 
reasonable)    implication,    regard    being    had 
to  the  objects  of  the  grant.     Any  ambiguity 
\  or    doubts    arising    out    of    the    terms    used 
by  the  legislatm-e  must  be  resolved  in  favor 
of  the  public."    Thomson  v.  Lee  Co.,  3  Wall. 
327.     In  Leonard  v.   City  of  Canton,  a  good 
leason  is  given  for  the  rule  that  grants  to 
corporations   by    the   legislature    should    be 
strictly  construed.     It  is  because  they  "are 
invested    with    a    portion    of    the    authority 
that   properly    appertains    to    the    sovereign 
power   of   the   state,"    and   the   state   never 
surrenders  its  Just  authority  save  by  grants 
that  are  clear  and  unambiguous.     35  Miss. 
I  189.      When    the    exercise    of    power    by    a 
'   municipal  corporation  will  result  in  the  im- 
X  position    of   burdens  or   taxes   upon   the   in- 
\  habitants,  the  existence  of  the  power  ought 
to  be  clear,  beyond  a  fair,  reasoual)le  doubt. 
I  A  different  rule  miglit  lead   to  mischievous 
^  and    oppressive    consequences.      We    are    of 
the  opinion   that   the  incorporated   town   of 
Newport,    in    making    the    contract   for    the 
construction  of  the  levee  in.  this  case,  acted 


without    either    express   or   implied    power, 
and  that  the  contract  was  therefore  void. 

Was  the  contract  such  as  could  be  rati- 
fied by  accepting  the  benefit  of  work  done 
under  it,  or  is  the  town  estopped  by  permit- 
ting the  work  to  be  done  under  it,  and  ac- 
cepting   the     benefit     of    such     work?      In 
Sohumm  v.    Seymour,   24  N.  J.   Eq.    144,  it 
is  said:     "It  is  a  general  and  fundamental 
principle  of  law  that  all  persons   contract- 
ing  with   a    municipal   corporation    must  at 
their  peril  inquire  into  the  power  of  the  corpo- 
ration  or  its  officers  to  make  the  contract, 
and  a  contract  beyond  the  scope  of  the  cor-  I 
porate   powers   is   void."      "The   doctrine  of  I 
equitable   estoppel  has  no  place  in  a  case,  I 
where  usurped  powers  have  been  exercised 
by  municipal  officers,  who  in  doing  so  were 
contravening  public  policy,  as  well  as  known,  i 
positive   law."     "Where  officials  are  acting 
within  the  terms  of  their  delegated  powers, 
though  they  may  be  acting  carelessly,  neg- 
ligently, or  in  culpable  betrayal  of  their  trust, 
they  are  tlie  agents  of  those  whose  property  is 
liable  to  be  charged,   and  if  the  latter  ac- 
qiuesce  in  or  fail  to  interpose,  when  the  neg- 
ligent or   culpable    conduct  of  their   agents 
is  open  to  their   view,   they   will  not  after- 
wards be  allowed  to  set  it  up  when  the  ef- 
fect of  so  doing  will  be  to  subject  innocent 
parties  to  the  burden  that  would  otherwise 
fall  upon  themselves."     Judge  Dillon,  in  sec- 
tion 403.  1  Dill.  Mun.  Corp.,  states  the  law 
in  this  behalf  plainly  and  tersely,  thus:     "A 
municipal    corporation    may    ratify    the    un- 
autliorized  acts  and  contracts  of  its  agents 
or   officers    which    are   within   the   scope   of 
the    corporate    powers,    but    not    otherwise. 
*     *     *     But  a  su])senuent  ratification   can- 
not  make   valid   an   unlawful   act,    without 
the  scope  of  corporate  authority.     An  abso- 
lute excess   of  authority  by  the  officers  of 
a    corporation,   in   violation    of   law,    cannot 
be  upheld,   and,   when   the   officers  of  such 
a  body   fail  to  pursue  the  requirements  of 
a  statutory  enactment  under  which  tliey  are 
acting,    the    corporation    is    not   bound.      In 
such  case  the  statute  must  be  strictly  fol- 
lowed.     And    a    person    who    deals    with    a 
municipal    body   is    obliged    to   see    that   its 
charter    has     been     fully     complied     with. 
When  this  is  not  done,  no  subseipient  act 
of  the  corporation  can  make  an  ultra  vires 
contract  effective."     Note  1,  and  cases  cited. 
As   the   contract   sued  on  in   this   case   was 
without  the  scope  of  the  corporate  power." 
of    ilie    incori)orated    town    of    Newport,    it 
could  not  be  ratified,  and  the  town  was  not 
estopped   to  deny   its   invalidity   by   having 
accepted   and  receive<l   the  benefit  of  work 
done  under  it,  with  the  knowledge  and  con- 
sent of  the  town.     Tlie  judgment  of  the  cir- 
cuit   court   is   reversed,    and    judgment   will 
be  rendered  here  for  the  appellant. 


THE  POLICE  POWER-SCOPE  AND  LIMITATIONS. 


89 


COOMBS  et  al.  v.  MacDONALD  et  al. 

(G2  N.  W.  41,  43  Neb.  632.) 

Supreme  Court  of  Nebraska.      Feb.  5,  1S95. 

Appeal  from  district  court,  Douglas  coun- 
ty;   Ferguson.  Judge. 

Action  by  Henry  Coombs  and  others,  on 
behalf  of  the  citizens  of  Omaha  and  all  oth- 
ers desiring  to  become  parties,  against  Alex- 
ander MacDonald  and  others,  the  mayor  and 
board  of  health  of  the  city  of  Omaha,  and 
the  city  council  of  the  city  of  Omaha,  .ludg- 
ment  for  complainants,  and  defendants  ap- 
peal.   Reversed. 

Saunders,  Macfarland  &  Dickey,  for  ap- 
pellants. Robt.  W.  Patrick  and  Brent  K. 
Yates,  for  appellees. 

POST,  J.  This  is  an  appeal  from  a  decree 
of  the  district  court  for  Douglas  county,  and 
involves  the  contract  for  the  removal  of  the 
gfirbage  of  the  city  of  Omaha,  which  was 
the  subject  of  the  controversy  in  Smiley  v. 
MacDonald  (Neb.)  GO  N.  W.  355.  By  the 
decree  appealed  from,  said  contract,  as  well 
as  the  ordinance  upon  which  it  depends,  was 
adjudged  void,  and  the  defendant  MacDon- 
ald, as  contractor,  peii^etually  enjoined  from 
Interfei-ing  with  the  plaintiff,  also  engaged 
in  the  business  of  removing  garbage  from 
said  city.  The  grounds  upon  which  said  con- 
tract is  assailed  in  the  petition  of  plaintiffs 
are:  First,  that  it  was  procured  through 
bribery  and  other  unlawful  and  corrupt 
means  by  MacDonald  and  others  interested 
with  him;  second,  tliat,  in  so  far  as  it  pur- 
ports to  confer  upon  the  contractor  the  ex- 
clusive right  to  remove  the  garbage  of  the 
city,  it  contravenes  the  settled  rules  of  pub- 
lic policy,  and  is  therefore  void.  The  district 
court  sustained  the  latter  contention  only, 
and,  in  the  language  of  the  decree,  "express- 
ly reserving  any  decision  upon  the  allega- 
tions of  the  petition  that  the  said  contract 
was  secured  by  fraud,  procurement,  and  il- 
legal inducements  offered  to  and  accepted 
by  members  of  the  city  council."  It  is  a  rule 
of  universal  application  to  appellate  proceed- 
ings that  tlie  examination  by  the  reviewing 
court,  whether  on  ai)peal  or  by  writ  of  er- 
ror, will  be  confined  to  issues  determined  by 
the  court  of  primary  jurisdiction.  A  party 
desiring  the  judgment  of  tliis  court  upon  a 
question  raised  by  the  pleadings  sliould  hrst 
present  the  subject  for  the  determination  of 
the  district  court,  and  secure  such  a  final 
judgment  or  decree  as  may  be  made  the 
foundation  for  proceedings  by  error  or  ap- 
peal. Civ.  Code,  §  581.  Had  the  plaintiffs 
so  requested,  we  have  no  doubt  the  decree  of 
the  district  court  would  have  been  made  to 
respond  to  all  of  the  issues  presented.  If  they 
are  on  the  evidence  in  the  record  entitled  to 


relief  on  the  ground  of  fraud,  the  finding  up- 
on that  issue  would  have  been  in  their  favor. 
But,  however  that  may  be,  the  original  ju- 
risdiction of  the  court  is  clearly  defined  by 
law,  and  does  not  include  actions  for  relief 
on  the  ground  of  fraud  to  which  the  state  is 
not  a  party.     See  section  2,  art.  6,  Const. 

2.  Aside  from  the  allegation  of  fraud,  the 
pleadings  herein  present  no  question  which 
was  not  considered  in  Smiley  v.  MacDonald. 
It  is  time  that,  in  the  case  named,  the  con- 
tract was  assailed  on  the  ground  that  the 
right  conferred  thereby  was  an  exclusive 
franchise,  and  therefore  within  the  inhibi- 
tion contained  in  section  15,  art.  3,  of  the 
constitution;  while  in  the  case  before  us,  as 
we  have  seen,  the  contention  is  that  said 
contract  is  void  as  against  public  policy. 
Counsel  for  defendants  have  cited  numerous 
cases  whicli  assert  the  common-law  doctrine 
that  monopolies  are  odious,  and  therefore  il- 
legal. But  they  refer  without  exception  to 
franchises  and  agreements  in  restraint  of 
trade,  and  can  have  no  application  to  mere 
i:)olice  regulations,  designed  to  promote  the 
health  or  morality  of  the  general  public.  Al- 
most every  phase  of  the  subject  was  dis- 
cussed in  the  celebrated  Slaugliter  House 
Ca^s,  16  Wall.  3G,  and  111  U.  S.  764,  4  Sup. 
Ct.  G52,  to  which  an  extended  reference  is 
made  in  the  brief  of  defendants;  and  the 
doctrine  therein  announced  fully  sustains  our 
conclusion  in  Smiley  v.  MacDonald.  Indeed, 
there  was  in  those  cases  no  diversity  of  opin- 
ion among  the  judges  with  respect  to  the  au- 
thority of  a  state  in  the  exercise  of  its  police 
power  to  confer  upon  an  individual  or  cor- 
poration a  privilege  in  its  nature  exclusive. 
On  the  other  hand,  the  dissent  of  the  non- 
concurring  judges  was  placed  upon  the 
ground  that  the  claim  of  a  sanitary  regula- 
tion was  a  mere  pretense,  under  which  the 
state  of  Louisiana  had  attempted  to  invade 
private  rights,  and  to  deny  to  its  citizens  the 
privilege  of  engaging  in  a  lawful  business  in 
no  wise  affecting  the  public  health  or  morals. 
As  intimated  in  Smiley  v.  MacDonald,  the 
choice  between  sanitary  measures  is  a  func- 
tion of  the  legislative  department  of  the  gov- 
ernment, which  the  courts  will  not  assume  to 
control.  The  test,  as  therein  remarked, 
where  a  particular  measure  is  called  in  ques- 
tion, is  wliether  it  has  some  relation  to  the 
public  welfare,  and  whether  such  is  in  fact 
the  end  souglit  to  be  attained. 

There  are  other  questions  discussed  by 
counsel  for  plaintiffs  which  would  be  en- 
titled to  our  serious  consideration,  but  a 
reference  to  the  record  has  satisfied  us  that 
they  are  not  presented  by  the  pleading,  and 
will  not  for  tliat  reason  be  noticed.  The  de- 
cree of  the  district  court  is  reversed,  and  the 
cause  remanded  for  further  proceedings  in 
accordance  with  this  opinion.    Reversed. 


90 


THE  POLICE  POWER— SCOPE  AND  LIMITATIONS. 


RUND   V.    TOWN   OF   FOWLER. 

(41  N.   E.  456,   142  Ind.  214.) 

Supreme  Court  of  Indiana.     Oct.  9.  1895. 

Appeal  from  circuit  court,  Benton  county; 
U.  Z.  Wiley,  Judge. 

Action  by  the  town  of  Fowler  against  Hen- 
ry Rund.  Judgment  for  plaintiff.  Defend- 
ant appeals.    Affirmed. 

Fraser  &  Isham,  for  appellant.  Brown  & 
Hall,  for  appellee. 

HACKNEY,  J.  This  is  an  appeal  from 
the  judgment  of  the  lower  court  assessing  a 
penalty  against  the  appellant  for  the  viola- 
tion of  an  ordinance  of  said  town.  The  ap- 
pellant insists  that  the  ordinance  is  invalid — 
First,  because  the  appellee  had  no  power  to 
pass  it;  and,  second,  because  its  provisions 
are  arbitrary  and  unreasonable.  The  first 
section  declares  that  slaughterhouses  within 
the  corporate  limits  of  the  town  shall  be 
deemed  public  nuisances.  The  second  sec- 
tion, with  the  violation  of  which  the  appel- 
lant was  charged,  provides  that  "it  shall  be 
unlawful  for  any  person  or  persons  or  cor- 
poration to  maintain  or  operate  any  slaughter- 
house within  the  coi-porate  limits  of  said 
town."  Section  3  prescribes  the  penalties 
for  violating  said  second  section.  The  stat- 
ute defining  the  powers  of  town  corporations 
(section  4357,  Rev.  St.  1894;  section  3333, 
Rev.  St.  ISSl)  provides  that  the  board  of 
trustees  shall  have  power:  "Fourth.  To  de- 
clare what  shall  constitute  a  nuisance,  and 
to  prevent,  abate  and  remove  the  same;  and 
to  take  such  other  measures  for  the  preser- 
vation of  the  public  health  as  they  shall  deem 
necessary.  *  *  *  Eighth.  *  *  *  To  di- 
rect the  location  of  slaughterhouses."  Up- 
on the  question  of  the  express  power  of  the 
appellee  to  adopt  and  enforce  the  ordinance 
before  us,  the  appellant's  counsel  confine  their 
argument  to  the  last-quoted  provision  of  the 
statute,  insisting  that  the  power  to  direct 
the  location  does  not  include  the  power  to 
exclude  from  the  corporate  limits  or  to  de- 
clare the  maintenance  of  slaughterhouses  to 
constitute  a  nuisance.  If  this  provision  stood 
alone,  we  should  not  incline  to  the  view  that 
the  ordinance  in  question  exceeded  the  power 
given.  Its  effect  is  certainly  to  provide  that 
slaughterhouses  shall  not  be  located  within 
the  corporate  limits,  and  that  a  violation 
of  this  direction  shall  bring  the  penalty  pre- 
scribed. The  ordinance  finds  support  as  the 
exercise  of  a  police  power,  and  has  for  its 
object  the  preservation  of  the  public  health. 
This  power  is  given  by  the  provision  of 
the  statute   first   quoted:    "To  declare  what 


shall  constitute  a  nuisance,  and  to  prevent 
*  *  *  the  same."  The  ordinance  in  ques- 
tion declares  that  a  slaughterhouse  withirk 
the  corporate  limits  of  the  town  shall  be 
deemed  a  public  nuisance,  and  the  penalty 
prescribed  is  intended  to  prevent  the  estab- 
lishment or  maintenance  of  such  nuisance. 
The  general  grant  of  power  following  that 
just  quoted  is  of  great  scope,  and  manifests 
the  intention  of  the  legislature  to  intrust  to 
the  municipality  large  discretion  in  the  en- 
actment of  "measures  for  the  preservation 
of  the  public  health."  It  is  possibly  true,  as 
counsel  insist,  that  a  slaughterhouse  is  not 
per  se  a  nuisance,  and  that  it  is  possible  for 
the  municipality  to  exceed  its  power  by  de- 
claring, arbitrarily,  that  to  be  a  nuisance 
w'hich  neither  from  its  character,  nor  the 
manner  in  which  it  is  controlled  or  conduct- 
ed, is  a  nuisance.  However,  a  slaughterhouse 
erected  or  conducted  in  violation  of  the  or- 
dinance becomes  a  nuisance,  though  it  may 
not  have  been  such  in  the  absence  of  such 
ordinance.  Nor  can  it  be  said  that  this  ap- 
peal may  be  maintained  because  the  ordi- 
nance, so  far  as  it  declares  a  slaughterhouse 
within  the  town  limits  to  be  a  nuisance,  is 
an  arbitrary  declaration  against  a  business- 
not  otherwise  a  nuisance.  The  penalty  from 
which  the  appeal  is  prosecuted  is  for  main- 
taining a  slaughterhouse  within  the  town 
limits.  As  we  have  said,  the  right  to  direct 
the  location  of  such  houses  is  given  by  the 
letter  of  the  legislative  grant,  and  the  pen- 
alty is  assessed  for  the  failure  to  obey  the 
direction  that  such  houses  shall  not  be  lo- 
cated within  the  corporate  limits.  The  pow- 
er given  had  been  exercised  by  excluding 
them  from  a  particular  locality.  This  is  but 
the  equivalent  of  a  direction  that  they  shall 
be  located  without  the  corporate  limits. 
Where  power  exists  to  pass  and  enforce  an  ' 
ordinance,  as  we  hold  that  it  does  in  this 
case,  there  can  be  no  inquiry  by  the  courts 
into  the  wisdom  or  reasonableness  of  the 
power,  or  its  exercise,  unless  it  infringe  some 
provision  of  the  constitution.  Steffy  v.  Town 
of  Monroe  City,  135  Ind.  4GG,  35  N.  E.  121/ 
and  authorities  there  cited. 

The  answer  of  the  appellant  that  the 
slaughterhouse  was  given  its  location  by  the 
direction  and  with  the  consent  of  the  town 
trustees  is  not  available  as  an  estoppel  with- 
out allegations  that  such  direction  or  consent 
was  by  corporate  action  taken  in  some  meth- 
od recognized  by  law,  if,  indeed,  an  order 
regularly  entered  of  record  by  the  board  in 
session  would  estop  the  corporation  to  take 
subseijuent  action  to  the  contrary.  See  Bar- 
thet  V.  City  of  Now  Orleans,  24  Fed.  5G3. 

Finding  no  error  in  the  record,  the  judg- 
ment of  the  circuit  court  is  afiirmed. 


CEMETERIES. 


91 


CITY  OF  AUSTIN  v.  AUSTIN  CITY 
CEMETERY  ASS'N. 

(28  S.  W.  528,  87  Tex.  330.) 

Supreme  Court  of  Texas.     Dec.  3,  1894. 

Certified  questions  from  court  of  civil  ap- 
peals of  Third  supreme  judicial  district. 

Action  by  the  Austin  City  Cemetery  Asso- 
ciation against  the  city  of  Austin.  On  ap- 
peal by  defendant  to  tlie  court  of  civil  ap- 
peals, questions  were  certified  to  the  supreme 
court 

Geo.  F.  Pendexter,  for  appellant.  C.  H. 
Miller  and  Fisher  &  Townes,  for   appellee. 

GAINES,  C.  J.  The  court  of  civil  appeals 
for  the  Third  supreme  judicial  district  in  the 
case  above  stated  submits  the  following 
statement,  and  certifies  for  our  determina- 
tion the  accompanying  questions: 

"The  appellee  Is  a  corporation  chartered 
under  the  laws  of  this  state  for  the  purpose 
of  maintaining  a  cemetery  in  the  city  of 
Austin,  and  owning  and  selling  lots  therein 
for  the  purpose  of  the  burial  of  dead  himian 
bodies;  and  that  in  1S02  it  acquired  and  pur- 
chased within  said  city  limits,  on  the  north 
side  of  the  Colorado  river,  a  tract  of  land  for 
said  cemetery;  and  that  in  February,  1S93, 
the  city  of  Austin,  as  a  municipal  corpora- 
tion, passed  the  following  ordinance: 

"  'Be  it  ordained  by  the  city  council  of  the 
city  of  Austin. 

'"Section  1.  Tliat  it  shall  be  unlawful  for  any 
person  to  bury,  or  cause  to  be  buried,  or  to 
in  any  manner  aid  or  assist  in  the  burial  of 
the  dead  body  of  any  human  being,  within 
the  coi-porate  limits  of  the  city  of  Austin, 
north  of  the  Colorado  river,  except  in  the 
State  Cemetery,  the  Moimt  Calvary  Ceme- 
tery, and  the  cemetery  heretofore  establish- 
ed by  ordinances  of  said  city,  and  therein 
designated  as  the  Austin  City  Cemetery; 
provided,  that  the  two  and  one-half  acre 
tract  lying  on  the  north  of  said  last  named 
cemetery,  purchased  by  said  city  in  1890, 
shall  not  be  considered  as  part  of  said  ceme- 
tery, and  no  burials  shall  be  made  in  said 
trj^ct 

"  'Sec.  2.  Any  person  who  shall  bui-y,  or 
cause  to  be  buried,  or  in  any  manner  aid  or 
assist  in  the  burial  of  the  dead  body  of  a 
human  being,  in  violation  of  section  one  of 
this  ordinance,  shall  be  deemed  guilty  of  a 
misdemeanor,  and  on  conviction  thereof, 
shall  be  fined  not  less  than  fifty  dollars,  nor 
more  than  two  himdred  dollars. 

"  'Sec.  3.  This  ordinance  shall  take  effect 
and  be  in  force  from  and  after  its  publica- 
tion, as  required  by  the  charter  of  the  city  of 
Austin.' 

"This  ordinance  was  passed  by  virtue  of 
the  following  provision  of  the  city  charter: 
'To  regulate  the  burial  of  the  dead  and  to 
prohibit  public  funerals  in  cases  of  death 
from  contagious  or  infectious  disease;  to  pur- 


chase, establish  and  regulate  one  or  more 
cemeteries  within  or  without  the  city  limits.' 
[Sp.  Laws  1891,  p.  109,  §  57,  subsec.  6.]  The 
territory  within  the  city  limits  on  the  north 
side  of  the  Colorauo  river  embraces  some- 
thing over  4,500  acres  of  land,  some  of  which 
is  thickly  settled,  a.nd  some  of  which  is  very 
sparsely  settled.  There  ia  territory  embra- 
ced within  the  city  limits,  on  the  south  side 
of  the  Colorado  river,  that  confessedly  may 
be  suitable  for  a  cemetery  and  burial  pur- 
poses, and  in  which  cemeteries  are  not  pro- 
hibited. The  appellee  brought  its  suit  by  in- 
junction to  restrain  the  city  from  enforcing 
the  ordinance  set  out  against  its  cemetery 
and  the  burial  of  the  dead  there,  and  asks 
that  said  ordinance  be  declared  void  on  the 
ground  that  the  charter  did  not  authorize 
the  city  to  pass  such  an  ordinance,  and  on 
the  further  ground  that  the  same  is  unrea- 
sonable and  unjust,  and  in  effect  deprives  ap- 
pellee of  its  property  and  rights  without  due 
process  of  law." 

The  questions  submitted  for  our  decision 
under  the  statement  of  the  case  are  as  fol- 
lows: "Question  No.  1:  Does  the  fact  that 
the  ordinance  set  out  may  be  void,  and 
that  the  city  was  not  immediately  seeking  ta 
enforce  it,  and  the  fact  that  a  legal  remedy 
may  exist  against  its  enforcement,  suflicient 
to  deny  the  appellee  the  remedy  by  injunc- 
tion to  restrain  its  execution,  and  to  declare 
the  ordinance  void,  when  the  facts  in  the  rec- 
ord show  that  the  right  and  privilege  of  using 
its  property  for  cemetery  purposes  was  de- 
stroyed or  impaired  by  virtue  of  the  exist- 
ence of  the  ordinance,  as  no  one  in  the  con- 
trol of  dead  bodies  was  willing  that  they 
should  be  buried  or  interred  there  for  fear  of 
violating  the  ordinance  in  question?  Ques- 
tion No.  2:  Does  the  provision  of  the  city 
charter  authorize  the  passage  by  the  city 
council  of  the  ordinance  in  question?  Ques- 
tion No.  3:  If  said  ordinance  was  legally 
passetl  by  virtue  of  authority  of  the  charter, 
have  tlie  courts  the  authority  to  inquire  in- 
to the  reasonableness  or  unreasonableness  of 
the  ordinance?  Question  No.  4:  Is  the  ordi- 
nance in  question  void  on  the  ground  that 
it  is  imjust  and  iinreasonable.  or  that  it  de- 
prives the  appellee  of  its  rights  or  property 
without  duo  process  of  law?  Question  No.  5: 
If  tlio  ordinance  may  be  unjust  or  unrea- 
sonable, has  the  trial  court  the  power  to  so 
determine,  as  a  matter  of  law,  when  there  is 
a  juiy  trial,  or  should  the  matter,  as  a  mixed 
question  of  law  and  fact,  be  left  to  the  de- 
termination of  the  jury?" 

1.  We  are  of  the  opinion  that,  if  tlie  ordi- 
nance in  conti'oversy  be  void,  the  appellee  is 
entitled  to  restrain  its  enforcement  by  the 
writ  of  injunction.  It  is  not  to  be  controvert- 
ed that,  as  a  general  rule,  the  aid  of  a  court 
of  equity  cannot  be  invoked  to  enjoin  crimi- 
nal pro.'^ecutions.  This  rule  is.  however,  sub- 
ordinate to  the  general  principle  that  equity 
will  grant  relief  Avhen  there  is  not  a  plain, 
adequate,  and  complete  remedy  at  law;  and^ 


92 


THE  POLICE  POWER— SCOPE  AND  LIINIITATIONS. 


when  it  is  necessary  to  prevent  an  irreparable 
injury,  courts  of  criminal  jiirisdiction  have 
power  to  enforce  an  observance  of  statutes 
against  crime  by  visiting  uix)n  offenders  the 
penalties  affixed  for  their  infraction,  and  or- 
dinarily no  one  can  caU  to  his  aid  the  powers 
of  a  court  of  equity  in  order  to  enforce  their 
observance.  Yet  it  has  been  held  that  "the 
court  will  interfere  to  prevent  acts  amomit- 
ing  to  crime,  if  they  do  not  stop  at  crime, 
but  also  go  to  the  destiiiction  or  deterioration 
of  the  value  of  the  property."  Spinning  Co. 
V.  Ililey,  L.  R.  6  Eq.  5.51.  Tliis,  however, 
■does  not  assist  us  materially  in  the  solution 
of  the  present  question.  It  would  seem  clear 
that  if  a  party  could  be  enjoined  fi'om  doing 
an  act,  not  criminal  in  its  nature,  which  is 
injurious  to  the  property  of  another,  he  could 
also  be  enjoined  if  the  act  be  one  made 
pvmishable  by  law  as  a  crime.  The  punish- 
ment of  the  criminal,  when  the  act  committed 
lias  injiu-iously  affected  the  value  of  the  prop- 
erty of  another,  does  not  repair  the  injiuTr. 
The  question  under  consideration  arises  upon 
<iulte  a  different  case.  Here  the  appellee 
seeks  to  enjoin  the  city  of  Austin  from  en- 
forcing an  ordinance  which  it  claims  to  be 
void,  and  says  that,  if  the  enforcement  be 
not  restrained,  it  will  result  in  an  inseparable 
injiu*y.  In  behalf  of  the  city  it  is  answered 
that,  if  the  ordinance  be  invalid,  there  exists 
•a  plain,  adequate,  and  complete  remedy  at 
law.  It  is  ti'ue  that,  if  the  ordinance  be 
void,  any  one  prosecuted  under  its  provisions 
may  have  it  so  declaimed,  either  in  the  original 
<Timinal  action,  or  by  suing  out  a  writ  of 
habeas  corpus.  Notwithstanding  this  fact, 
it  is  clear  to  us,  without  the  statement  of  the 
■conclusion  by  the  court  of  civil  appeals,  that 
the  effect  of  the  ordinance  is  such  that,  if  its 
enforcement  be  not  resti-ained,  it  may  result 
in  a  total  destruction  of  the  value  of  appel- 
lee's property  for  the  pm'pose  for  which  it 
was  acquired.  Its  provisions  are  very  sweep- 
ing, and  denounce  a  penalty  against  "any  per- 
son who  shall  bury,  or  cause  to  be  bm'ied, 
or  in  any  manner  aid  or  assist  in  the  burial 
of  the  dead  body  of  a  human  being,"  con- 
trary to  its  provisions.  No  one,  we  appre- 
hend, without  some  considei-able  inducement, 
will  do  an  act  which  may  cause  him  to  be  ar- 
rested and  prosecuted,  however  clear  he 
might  be  in  his  own  mind  that  the  act  con- 


stituted no  violation  of  the  criminal  law.  A 
criminal  prosecution  is  unpleasant  to  all 
people  who  have  due  respect  for  the  law, 
and  almost  necessarily  involves  inconven- 
ience and  expense.  As  long  as  the  ordinance 
remains  undistui-b?d,  it  acts  in  terrorem,  and 
practically  accomplishes  a  prohibition  against 
the  burial  of  the  dead  within  the  limits  of  the 
city  of  Austin,  save  in  the  excepted  localities. 
Under  these  conditions,  who  would  ventm-e 
to  bury,  or  be  concerned  in  biu-ying,  a  dead 
body  in  appellee's  ground,  or  who  would  piu"- 
cbase  a  lot  in  its  cemetery?  Suppose  a  city, 
not  having  the  power  under  its  charter  to  do 
so,  should  pass  an  ordinance  prohibiting  the 
sale  of  butchers'  meat  in  a  certain  locality, 
and  suppose  it  should  also  prohibit  any  one 
from  selling  meat  to  be  there  sold,  or  fi'om 
buying  in  the  prohibited  place.  The  ordi- 
nance would  be  void;  but  could  any  one  say 
that  the  business  of  a  mai'icet  man  in  the 
locality  might  not  be  effectually  desti'oyed 
by  it?  Under  such  circumstances,  we  are 
of  opinion  that  he  should  have  the  right  to 
proceed  against  the  corporation  to  enjoin  its 
enforcement.  If  a  penalty  was  denounced 
against  no  one  but  the  market  man  who 
should  sell,  it  would  seem  that  his  remedy 
would  be  to  proceed  with  his  business,  and 
defeat  any  prosecution  that  should  be 
brought  against  him  for  the  infraction  of  the 
void  ordinance.  But  to  deny  a  remedy  in  a 
court  of  equity  in  the  case  first  supposed,  or 
in  the  present  case,  analogous  to  it,  would 
be,  we  think,  to  disregard  the  fundamental 
principle  upon  which  such  coiu-ts  are  estab- 
lished. We  ax"e  aware  that  our  conclusion 
in  this  case  is  in  conflict  with  the  case  of 
Wardens  of  St.  Peter's  Episcopal  Church  v. 
Town  of  Washington,  109  N.  C.  21,  13  S.  E. 
700;  but  it  is  supported  by  the  case  of  City 
of  Atlanta  v.  Gate  City  Gaslight  Co.,  71  Ga. 
106,  and  other  authorities.  In  the  latter  case 
the  court  say:  "Where  it  is  manifest  *  *  * 
that  a  prosecution  and  ari'est  is  threatened 
for  an  alleged  violation  of  city  ordinances, 
for  the  sole  purpose  of  preventing  the  exer- 
cise of  civil  rights  conferred  directly  by  law, 
injunction  is  the  proper  remedy  to  prevent 
injurj'  to  the  party  thus  menaced."  i 


1  Part  of  the  opinion  is  omitted. 


PUBLIC  MARKETS. 


9» 


STATE  T.   SARRADAT  et  al.     (No.   11.391.) 

(15  South.  87,  4G  La.  Ann.  700.) 

Supreme  Court  of  Louisiana.     April  9,  1S94. 

Appeal  from  recorder's  court  of  New  Or- 
leans;   Aujrust  M.  Aucoin,  Juil^e. 

John  L.  Sarradat  and  others  were  convict- 
ed of  violation  of  an  ordinance,  and  appeal. 
Affirmed. 

Sanibola  &  Ducros,  for  appellants.  E.  A. 
O'Sullivan,  City  Attj-.,  and  George  W.  Flynn, 
Asst.  City  Atty.,  for  the  State. 

McINERY,  J.    The  defendants  were  con- 
victed  and    fined   for  violating   sections   22, 
20,  27,  of  City  Ordinance  41.j5,  Council  Se- 
ries,   amended  by    Ordinance  4274,    Council 
Series.    They  appealed,   alleging  the  uncon- 
stitutionality and  illegality  of  the  ordinance. 
In  detail  the  defense  is  that  the  provisions 
of  said  ordinance   are  oppressive,   and   con- 
trary to  the  enlightened  policy  of  the  state, 
and,  "inasmuch  as  section  27  aforesaid  pro- 
hibits  the   sale   of   their  vegetables   in    any 
other  part  of  the  market  or  vicinity,  and  dur- 
ing more  than  half  the  bu-siness  portion  of 
the   day,— i.   e.   between  the  hours  of  seven 
o'clock  a.  m.  and  two  o'clock  p.  m.,  in  viola- 
tion of  the  first  and  the  two  hundred  and 
sixth  articles  of  the  state  constitution;"  that 
the  said  sections  of  the  ordinance  are  arbi- 
trary, and  in  restraint  of  trade,  and  in  con- 
travention   of    common    as   well    as    private 
rights;    that  the  provisions  of  section  22,  if 
they   apply   to   defendants'    calling,   exclude 
them  from  the  markets,  in  violation  of  their 
constitutional  rights   to    sell    their   produce; 
that  the  sale  of  the  defendants'  vegetables 
is  not  a  nuisance,  and  injurious  to  the  public 
health;   that  the  police  force  of  the  city  and 
the  market  lessees  are  convinced  of  the  ille- 
gality of  the  ordinance,  and  have  not  hereto- 
fore attempted  to  enforce  it,  and  permit  the 
sale  of  vegetables  from  gardener's  carts  at  the 
market  on  the  payment  of  25  cents  per  day. 
Article  200  of  the  constitution  has  no  appli- 
cation to  the  case.    Article  1  has  reference 
to  the  origin  of  government  from  the  people, 
and  defines  the  legitimate  objects  of  govern- 
ment,   its   legitimate   end   being   "to  protect 
tlie  citizen  in  the  enjoyment  of  life,  liberty, 
and  proi)i'rty."    Its  failure  to  protect  the  pub- 
lic health  would  be  as  great  a  violation  of 
its    "legitimate    end"    as   to   entirely   depart 
from  its  object  by  the  enactment  of  a  law 
infringing  upon  the  rights  of  the  individual. 
I  We  may  assume,  therefore,  that  the  proper 
I  regulation  of  the  market  is  a  sanitary  meas- 
1   ure,  being  for  the  purpose  of  promoting  tlie 
public  health,   and  a  legitimate  exercise  of 
the  governmental  power.    In  the  exercise  of 
this  power  the  legislature  has  conferred  am- 
ple and  complete  power  on  the  city  council 
to  establish  markets,  and  to  provide  for  the 
cleanliness  and  salubrity  of  the  city.    In  car- 
rying   out    tills    conferred    power,    the    city 
council  has  the  power  "to  designate  certain 


spots  or  places  for  the  sale  of  certain  arti- 
cles of  provisions.    In  doing  so  they  facili- 
tate the  people  in  the  purchase  of  provisions 
of   first   necessitj'  by  confining   the   sale  of 
them  to  particular  places  and  hoiu-s  of  the 
day,    and   they    facilitate    the    inspection    of 
provisions;    and  by  the  hire  of  stalls  they   [ 
raise  money  to  defray  the  expenses  of  build- 
ing market  houses,  and  pay  the  salaries  of 
officers  they  appoint  to  prevent  the  sale  of 
unsound  provisions;    and  they  have  an  un-    | 
doubted  right  to  prevent  the  violation  of  or-  | 
dinances  they  may  pass  in  establishing  mar- 
kets."   Morano    v.    Mayor,    2  La.  217.    The 
docti'ine  enunciated  in  this  case  seems  to  be 
universal.     Dill.    Mim.   Corp.   §   313;    Parker 
&  W.  Pub.  Health  &  Safety,  par.  305;    State 
V.  Gisch,  31  La.  Ann.  544.    The  right  to  es- 
tablish public  markets  is  accompanied  by  the  / 
right  to  prevent  the  establishment  of  private  I 
markets  within  prescribed  limits.    Parker  & 
W.  Pub.   Health  &  Safety,  par.  307;    State 
V.  Gisch,  31  La.  Ann.  544;    City  of  New  Or- 
leans v.  Stafford,  27  La.  Ann.  417;    State  v. 
Schmidt,  41  La.  Ann.  27,  G  South.  530;  State- 
V.    Barthe,   41   La.    Ann.   46,   6   South.    531; 
State   V.    Natal,    42    La.    Ann.    012,    7    South. 
781;    State  v.   Deffes,  44  La.   Ann.   104,   10 
South.   597.     And  also  to  prohibit  the   ped-  / 
dling  a'^out  the  streets  of  the  city  of  all  per- 
isnable  lood  articles.    The  city  council  there-  j 
fore  has  the  unquestioned  authority  to  des- 
ignate a  place  where  perishable  articles  of 
food,  such  as  meat,  fish,  fi-uits,  and  vegeta-    ; 
bles,    may   be   sold;    the   market   limits;    to 
regulate  the  police  management  of  the  mar-    i 
ket  places;    to  lease  the  same,  not  for  the 
purpose  of  revenue  alone,  but  in  order   to    , 
maintain  the  proper  police  of  the  markets; 
the  building  of  market  houses,  and  the  re- 
pairs of  the  same;    and  for  this  purpose  to-  i 
authorize  the  lessee  to  charge  a  reasonable  j 
sum  for  stall  and  market  room.    Morano  v. 
Mayor,  2  La.  217.    The  establishment  of  mar-    / 
ket  places  is  for  public  convenience,  as  well    / 
as  for  the  promotion  of  the  cleanliness  and   f 
health  of  the  city.    It  is  not  a  permit  or  li- 
cense  to  sell  particular   articles   there,   and 
therefore    no    special   license   for    selling   at    . 
that  particular   place  can  be  exacted.    But    / 
this  does  not  prohibit  the  payment  for  the   ( 
use  of  stalls   and   market    room  or   space,    I 
which  is  exacted  for  the  pm-pose  of  keeping 
up   the   market  places.    The   market   places 
having  for  their  double  purpose  the  preser-    | 
vation  of  the  public  health  and  the  general    / 
convenience  of  the  public,   all  persons  who   I 
resort  to  them  for  the  sale  of  such  articles    j 
as  are  required  to  be  sold  there  must  have 
access  to  them.   The  market  regulations  must     . 
be   impartial,   affording  the   same   rights   to    ; 
all,   avoiding  the  creation  of  monopolies  in    ; 
one  or  several  persons,  and  the  prohibition 
of  trade  in  any  article,  or  an  undue  restraint  | 
of  trade.    Parker  &  W.  Pub.  Health  &  Safe- 
ty, par.  308;    DiU.  Mun.  Corp.  §  380;    City  of 
Jacksonville  v.  Ledwith,  20  Fla.  1(»,  7  South. 
885;    State  v.   Mahner,  43  La.  Ann.  497,  9 


94c 


THE  POLICE  POWEK-SCOPE  AND  LIMITATIONS. 


South.  4S0.  Section  22  of  the  ordiBance  pro- 
hibits the  peddUng  of  meats,  fish,  game, 
fowls,  vegetables,  and  fruits  in  any  of  the 
public  markets,  or  within  six  blocks  of 
same.  Section  26  gives  the  right  to  market 
wagons  to  back  up  to  the  banquettes  along 
the  markets,  to  deliver  goods  previously  sold 
to  occupants  of  stalls.  It  prohibits  the  own- 
ers of  the  wagons  from  selling  their  produce 
from  said  wagons  between  the  hom-s  of  1 
a.  m.  and  2  p.  m.  No  fees  or  dues  are  to  be 
collected  from  said  wagons.  Section  27  pro- 
hibits the  sale  of  any  article  on  the  sidewalk 
or  the  public  waUis  in  front  or  in  the  rear 
or  around  any  of  the  markets.  The  offense 
of  defendants  was  selling  from  their  wagons 
while  they  were  backed  to  the  market  ban- 
quette for  the  pm-pose  of  dehvering  goods 
sold  to  owners  of  stalls. 

/  Under  the  terms  of  the  law  referred  to 
above,  we  are  unable  to  see  where  any  of  the 
rights  of  defendants  were  infringed.  They 
were  dealers  in  vegetables,  which  the  ordi- 
nance required  should  be  sold,  if  within  mar- 
ket limits,  within  market  hours.  They  were 
not  excluded  from  the  sale  of  their  produce 
in  the  markets.  They  could  have  rented 
stalls  or  space,  and  disposed  of  their  goods 
within  the  market  inclosure.  There  was  no 
monopoly  created  in  favor  of  one  or  more 
persons  by  the  prohibition  of  the  sale  of  cer- 
tain articles  immediately  on  the  banquettes 
And  approaches  to  the  markets.    This  regu- 


lation did  not  prevent  their  sale  elsewhere, 
either  in  the  market  or  beyond  the  market 
limits.  The  market  ordinance  is  not  oppress- 
ive, as  it  interferes  with  no  right  of  the  de- 
fendants. It  is  not  partial,  and  does  not 
operate  against  them  exclusively,  but  is  ap- 
plicable to  the  vendors  of  articles  or  goods 
required  to  be  sold  within  certain  limits  and 
within  certain  hours.  The  conflict  about  tho 
deficiency  of  room  for  the  numerous  carts 
or  wagons  at  the  market  has  nothing  to  do 
with  the  case.  There  is  no  prosecution  for 
obstructing  the  approaches  to  the  market  by 
defendants'  carts.  / 

The  testimony  which  was  rejected  also  has 
no  place  in  determining  the  question  at  is- 
sue. It  is  immaterial  whether  the  defend- 
ants for  a  long  time  were  permitted  by  the 
market  lessees  and  the  police  to  sell  from 
their  wagons  while  backed  to  the  market 
sidewalks,  or  tliat  they  were  reqiured  to  pay 
25  cents  for  selling  from  their  wagons.  Tho 
ordinance  does  not  reqviire  the  payment  of 
such  a  fee,  and  the  evidence  was  irrelevant. 

Because  the  defendants  raised  the  produce 
which  they  sold,  in  violation  of  the  ordinance, 
gave  them  no  special  privilege  of  exemption 
from  its  operation.  The  case  of  State  v. 
Blaser,  36  La.  Ann.  363,  relied  upon  by  de- 
fendants, presents  a  different  state  of  facts, 
and  different  issues  were  involved,  and  ;  ■ 
therefore  is  inapplicable  here.  Judgment  af- 
firmed. 


INSPECTION  OF  MERCHANDISE  OFFERED  FOR  SALE. 


95 


TEOrLE  V.  WAGXEK  et  al.      SAME  v.  BAR- 

ItlE  et  al.     SAME  v.  WITTELS- 

BEKCEK  et  al. 

(49  N.  W.  G09,  86  Mich.  594.) 

Supreme  Court  of  Michigan.     July  28,  1891. 

Certiorari  to  recorder's  court  of  Detroit. 

The  defendants  in  each  case  were  jointly 
convicted  of  a  violation  of  an  ordinance,  and 
the  three  cases  came  to  the  supreme  court  on 
a  writ  of  certiorari  bj'  stipulation,  on  one 
record.     "Writ  dismissed. 

William  Look  and  H.  F.  Chipman,  for  peti- 
tioners. Chas.  W.  Casgi'ain,  City  Atty.,  for 
the  People. 

McGRATH,  J.  This  case  comos  from  the 
recorder's  court  of  the  city  of  Detroit  by  writ 
of  certiorari,  defendants  having  been  con- 
victed of  a  violation  of  a  city  ordinance.  By 
stipulation,  the  cases  come  up  on  cue  record. 
Defendants  are  bakers,  and  are  charged  with 
making  for  sale,  selling,  and  offering  for  sale, 
bread  that  was  deficient  in  weight  under  the 
ordinance.  The  ordinance  is  entitled  "An  or- 
dinance relative  to  the  manufacture  and  sell- 
ing of  bread."  The  ordinance  provides  that 
it  shall  not  be  la^^i:■ul  for  any  person  to  carry 
on  the  trade  or  business  of  baker,  without 
tirst  having  obtained  from  the  common  coun- 
cil a  permit  for  that  purpose.  It  next  pre- 
scribes how  the  permit  shall  be  obtained,  and 
that  the  clerk  shall  keep  a  record  of  the  per- 
mits granted.  It  then  concludes  as  follows: 
"Sec.  4.  All  bread  of  every  description,  manu- 
factured by  the  bakers  of  this  city  for  sale, 
shall  be  made  of  good  and  wholesome  flour 
or  meal,  into  loaves  of  one  pound,  two  pounds, 
and  four  pounds  (and  no  other)  avoirdupois 
weight;  and  no  baker  shall  make  for  sale, 
or  shall  sell  or  expose  for  sale,  any  bread 
that  shall  be  deficient  in  weight,  according 
to  the  requisitions  prescribed  in  the  preceding 
section  of  this  chapter:  provided,  always, 
that  such  deficiency  in  the  weight  of  such 
bread  shall  be  ascertained  by  the  sealer  of 
weights  and  measures,  by  weighing,  or  caus- 
ing to  be  weighed,  in  his  presence,  within 
eight  hours  after  the  same  shall  have  been 
baked,  sold,  or  exposed  for  sale:  and  pro- 
vided, further,  that  whenever  any  allowance 
in  the  weight  shall  be  claimed  on  account  of 
any  bread  having  been  baked,  sold,  or  ex- 
posed for  sale  more  than  eight  hours,  as 
aforesaid,  the  burden  of  proof  in  respect  to 
the  time  when  the  same  shall  have  been  bak- 
ed, sold,  or  exposed  for  sale  shall  devolve 
upon  the  defendant  or  baker  of  such  bread. 
See.  5.  The  sealer  of  weights  and  measures, 
under  the  direction  of  the  chief  of  police, 
shall  be  inspector  of  bread;  and  it  shall  be 
his  duty,  and  he  is  hereby  authorized  and  re- 
quired, from  time  to  time,  aixl  not  less  than 
once  in  each  month,  at  all  seasonable  hours, 
to  enter  into  and  inspect  and  examine  every 
baker's  shop,  storehouse,  or  other  building 
where  any  bread  is  or  shall  be  baked,  stored, 


or  deposited,  or  offered  for  sale,  and  to  in- 
spect and  examine,  in  any  part  of  said  city, 
any  person  or  persons,  wagons  or  other  car- 
riages, carrying  any  loaf  of  bread  for  the 
purpose  of  sale,  and  weighing  the  same,  and 
determine  whether  the  same  are  in  violation 
of  the  true  intent  and  meaning  of  this  chap- 
ter; and,  if  the  said  inspector  shall  find  any 
bread  not  conformable  to  the  directions  herein 
contained,  or  any  part  of  them,  he  shall  make 
complaint  thereof  for  the  purpose  of  having 
such  person  prosecuted  according  to  law.  Sec. 
6.  No  person  or  persons  shall  obstruct,  or  in 
any  manner  impede  or  willfully  delay,  the 
said  sealer  of  weights  and  measures  in  the 
execution  of  his  duties  under  this  act,  either 
by  refusing  him  or  delaying  his  entrance  or 
.admission  into  any  of  the  places  above  named, 
or  refuse  or  omit  to  stop  their  wagon  or  car- 
riage as  aforesaid,  whereby  the  due  execution 
of  this  ordinance,  or  any  part  of  it,  shall  be 
impeded  or  obstructed.  Sec.  7.  Any  violation 
of  any  of  the  provisions  of  this  ordinance  shall 
be  punished  by  a  fine  not  to  exceed  fifty  dol- 
lars and  the  cost  of  prosecution;  and  the  of- 
fender may  be  imprisoned  in  the  Detroit  house 
of  correction  until  the  payment  thereof:  pro- 
vided, always,  that  the  tei-m  of  imprisonment 
sliall  not  exceed  the  period  of  six  months." 
The  defendants  insist  (1)  that  matters  contain- 
ed within  the  body  of  the  ordinance  are  not 
within  its  title;  (2)  that  by  the  ordinance  pri- 
vate property  is  taken  without  compensation; 
(3)  that  the  ordinance  abi-idges  the  right  of  the 
respondents  to  manufacture  loaves  of  bread 
of  such  size  or  weight  as  they  may  deem  most 
salable;  (4)  that  it  curtails  defendants'  busi- 
ness, and  places  a  limitation  upon  the  capacity 
of  respondents  to  carry  on  a  lawful  business; 
(5)  that  the  ordinance  is  not  within  the  poUce 
powers  of  the  state. 

There  is  no  force  in  the  first  objection,  as 
the  provisions  of  the  ordinance  are  clearly 
within  the  scope  of  its  title.  It  has  been  held 
that  the  constitutional  provisions  relating  to 
the  title  of  laws  passed  by  the  legislature  do 
not  apply  to  ordinances  enacted  by  a  common 
council  of  a  city.  People  v.  Hanrahan,  75 
Mich.  611-G15,  42  N.  W.  1124. 

The  ordinance  does  not  provide  for  the  tak- 
ing, seizing,  or  desti-uction  of  short- weight 
bread.  It  does  prohibit  the  sale  of  bread 
which  is  deficient  in  weight.  The  same  ob- 
jection might  be  made  to  ordinances  prohibit- 
ing the  importation  of  infected  rags,  or  the  sale 
of  diseased  cattle  or  of  unsound  beef,  or  of 
decayed  vegetables,  or  of  illuminating  oils 
which  are  below  the  standard  test,  or  of  wa- 
tered milk.  In  Wheeler  v.  Russell,  17  Mass. 
257,  it  was  held  that  no  recovery  could  be  had 
for  the  price  and  value  of  shingles  which  were 
not  of  the  statutory  dimensions.  In  Eaton  v. 
Keegan,  114  Mass.  433,  it  was  held  that,  in 
view  of  the  statute  requiring  oats  and  meal 
to  be  sold  by  the  bushel,  no  recovery  could  be 
had  for  the  price  and  value  of  those  articles 
when  sold  by  the  bag. 
It  is  claimed  by  defendants  that,  in  order  to 


96 


THE  POLICE  POWER-SCOPE  AND  LIMITATIONS. 


get  a  pound  of  baked  bread,   they  are  com- 
pelled to  put  into  the  oven  more  than  a  pound 
of  dough,  and  that  the  process  of  baking  re- 
duces the  weight,  and,  when  asked  what  it  is 
that   evaporates,    they   reply,     "Water."     But 
they  say  the  process  of  baking  is  not  always 
uniform.     The  oven  may  be  too  hot.     In  such 
case,  the  bread  crusts  or  skins  quickly,  retain- 
ing the  moisture.     And  again,  it  may  be  too 
cold;    in  which  case  the  bread  dries  up,  rather 
than  bakes,  and,  m  order  to  insure  a  pound 
loaf,  the  latter  contingency  must  be  provided 
against,  and  the  weight  of  the  dough  must  al- 
ways be  regulated  accordingly.     That  fermen- 
tation is   not  always   regular,   and,    when   it 
reaches  a  certain  point,  the  dough  must  be  put 
into  the  oven,  without  reference  to  the  condi- 
tion of  the  oven.     That  the  cutting  up  of  the 
dough,  the  weighing  of  it,  and  its  transfer  to 
the  oven  is  necessarily  hurried,  and  the  scales 
are  hable  to  become  clogged  or  affected  by 
dust.'''  Notwithstanding  aU  the  difficulties  sug- 
gested   by    respondents,    the    evidence    shows 
that  the  bread  inspector  has  been  diligent  in 
the  performance  of  his  duties;    had  frequently 
visited  the  several  bakeries  of  defendants,  and 
but  one  of  these  defendants  has  before  this 
time  been  complained  of,  and  that  was  1.5  years 
ago:    and  it  is  admitted  by   defendants,   not 
only  that  the  ordinance  may  be  complied  with, 
but  that  the  short-weight  bread  discovered  by 
the  inspector  was  made  for  the  very  purpose 
of  testing  the  validity  of  this  ordinance;    and, 
after  the  authorities  had  caused  complaint  to 
be  made  against  defendants,  they  resumed  the 
former  manner  of  doing  business,  and  made 
their  bread  in  accordance  with  the  provisions 
of  the  ordinance.  /  Again,  it  is  claimed  that  a 
barrel  of  flour  will  make  250  loaves  of  bread, 
and  that  it  is  impossible  to  distribute  an  or- 
dinary advance  in  price  of  fiotir  over  this  pro- 
duct;  in  other  words,  that  the  price  of  a  loaf 
of  bread  cannot  be  advanced  a  fraction  of  a 
cent.     This  difficulty  affects  the  retail  dealer 
more  than  the  wholesaler.     It  has  to  be  met 
in  the  sale  of  a  pound  of  nails,  of  a  dozen 
buttons,  or  of  a  paper  of  needles,  as  well  as  in 
the  sale  of  a  loaf  of  bread.    The  ordinance  does 
not  attempt  to  regulate  the  price  of  the  com- 
modity.     That   is   not   necessarily   fixed    with 
reference  to  flour  at  its  cheapest  price,  so  that, 
until   the   price   of   flour  is   reduced   until   it 
reaches  a  point  where  the  redtiction  may  be 
distributed,  the  dealer  gets  the  advantage  of 
the  reduction,  and  when  it  advances  above  the 
standard  the  consumer  gets  the  advantage,  un- 
til a  point  Is  reached  where  the  advance  may 


be  added.  This  fluctuation  and  these  results 
are  ordinary  incidents  of  trade.  The  state 
may  institute  any  reasonable  preventive  rem- 
edy when  the  frequency  of  the  frauds,  or  the 
difficulty  experienced  by  inuividuals  in  cir- 
cumventing them,  is  so  great  that  no  other 
means  will  prove  efficacious.  Tied.  Lim.  p. 
20S,  §  89.  Bread  is  an  article  of  general  con- 
sumption. It  is  usually  sold  by  the  loaf,  and 
the  individual  consumer,  in  the  majority  of 
cases,  buys  by  the  single  loaf.  Each  transac- 
tion involves  but  a  few  pennies,  although  the 
number  of  individual  transactions  in  a  large 
city  reaches  each  day  into  the  thousands,  and 
the  opportunities  for  fraud  are  frequent.  It 
would  be  practically  impossible  to  prevent 
fraud  in  the  sale  of  short-weight  loaves,  if  the 
matter  was  left  to  the  ordinary  legal  remedy 
afforded  the  individual  consumer  for  fraud  or 
deceit.  The  amouut  involved  would  not  jus- 
tify a  resort  to  litigation.  Sales  are  invari- 
ably made  in  loaves  of  the  size  of  one,  two, 
or  four  pound  packages,  and  the  ordinance 
simply  takes  the  usual  and  ordinary  packages 
or  loaves  into  which  bread  is  made,  and  fixes 
the  standard  of  weight  of  each  package.  It 
does  not  proliibit  the  sale  of  bread  by  weight 
if  it  overruns,  as  it  is  claimed  that  it  some- 
times does,  nor  does  it  prohibit  the  exaction 
of  an  increased  price  by  reason  of  the  addition- 
al weight.  '  It  does  not  prohibit  the  sale  of  a 
half  or  a  quarter  or  any  other  fraction  of  a 
loaf.  Oiu-  stattites  not  only  fix  the  number  of 
pounds  of  each  of  the  various  commodities 
that  shall  constitute  a  bushel,  but  they  also 
provide  that  a  "box"  or  "basket"  of  peaches 
shaU  contain  one-third  of  a  bushel,  and  they 
fix  the  size  of  a  "barrel"  of  fruit,  roots,  or 
vegetables,  and  they  may,  with  equal  pro- 
priety, fix  the  weight  of  a  package  or  loaf  of 
bread. 

The  police  power  of  a  state  is  not  confined 
to  regulations  looking  to  the  preservation  of 
life,  health,  good  order,  and  decency.  Laws 
providing  for  the  detection  and  prevention  of 
imposition  and  fraud,  as  a  general  proposition, 
are  free  from  constitutional  objection.  Tied. 
Lim.  p.  208,  §  89.  The  charter  of  the  city  of 
Detroit  empowers  the  common  council  "to  di- 
rect and  regulate  the  weight  and  quantity  of 
bread,  the  size  of  the  loaf,  and  the  inspecting 
thereof."  The  ordinance  is  clearly  within  this 
provision,  and  it  cannot,  under  the  decision  in 
People  V.  Armstrong,  73  Mich.  293,  41  N.  W. 
275,  be  subjected  to  the  test  of  reasonableness. 
The  convictions  are  affirmed,  and  the  writ  dis- 
missed.    The  other  justices  concurred. 


(?' 


THE  ABATEMENT  OF  NUISANCES  IN  GENERAL. 


97 


WALKER  et  al.  t.  JAMI:?<0N  et  aL 

(37  N.  E.  402.  140  Ind.  591.) 
Supreme  Court  of  Indiana.     May  9,  1894. 

Appeal  from  circuit  court,  Marion  county; 
E.  A.  Brown,  Judge. 

Action  by  Thomas  J.  Jameson  and  others 
to  enjoin  Grceubcrry  Wallier  and  others  from 
interfering  witli  or  removing  certain  garbage 
which  plaintiffs  had  contracted  to  remove. 
From  a  judgment  for  plaintiffs,  defendants 
appeal.     Afhrmed. 

John  F.  Carson,  C.  W.  Thompson,  and  Mc- 
Cullough  «&  Spaan,  for  appellants.  Miller, 
Winter  &  Elam,  for  appellees. 

DAILEY,  J.  On  July  12,  1S93,  the  city  of 
Indianapolis,  by  its  board  of  public  works,  by 
contract  (a  copj-  of  which  is  in  the  complaint) 
clothed  James  H.  Woodward  with  the  ex- 
clusive right  and  obligation  to  remove  the 
garbage  from  the  premises  of  all  persons  in 
said  city,  and  to  transport  the  same  through 
the  streets  thereof  to  the  crematory.  On 
August  IS,  1S93,  with  the  written  consent  of 
the  city,  said  Woodward  assigned  the  con- 
tract to  the  appellee  Jameson.  The  circuit 
court,  at  the  suit  of  Jameson,  after  due  no- 
tice and  hearing  on  complaint  and  affidavits, 
enjoined  appellants  from  interfering  with  or 
removing  such  garbage.  By  this  appeal,  ap- 
pellants attack  the  ruling  of  the  circuit  court 
granting  that  injunction. 

The  general  ordinance  of  the  city  (No.  5, 
1S93)  designed  to  effectuate  the  contract  is 
set  out  in  the  complaint.  The  contract  makes 
it  the  duty  of  the  contractor  to  remove  all 
the  garbage.  The  ordinance  requii-es  the 
householder  to  place  the  garbage  in  proper 
receptacles  convenient  for  removal,  and  for- 
bids any  person  other  than  the  contractor 
to  interfere  with  or  remove  the  same.  The 
ordinance  is  expressly  authorized  by  section 
23  of  the  charter  (Acts  1891,  pp.  143-145), 
wherein  it  is  provided  tliat  the  common  coun- 
cil shaU  have  the  power  to  enact  ordinances 
"to  prevent  the  deposit  of  any  unwholesome 
substances,  either  on  private  or  public  prop- 
erty, compel  its  removal  to  designated  points, 
and  to  require  slops,  garbage,  ashes,  waste  or 
other  material  to  be  removed  to  designated 
points,  or  to  require  the  occupants  of  prem- 
ises to  place  them  conveniently  for  removal." 
In  strict  pm-suance  of  this  expressly  author- 
ized power,  the  ordinance  in  question  was 
passed.  Section  59  of  the  city  charter  (Acts 
1891,  pp.  1G7-1(!9,  et  seq.)  expressly  authorizes 
the  board  of  public  works  "to  remove  aU 
dead  animals,  garbage,  tilth,  ashes,  dirt, 
rubbish  or  other  offal  from  such  city,  either 
by  contract  or  otherwise."  Accordingly,  the 
common  council  having  authority  to  pass  the 
ordinance  providing  for  the  collection  and 
storage,  in  proper  receptacles,  of  the  garbage, 
and  the  board  of  public  works  having  author- 
ity to  remove  the  same,  the  ordinance  was 
passed,  and  the  contract  was  made,  each 
ABB.COIir.— 7 


supplementing  the  other,  to  carry  out  the 
common  duty  imposed  on  the  two  bodies  for 
the  protection  of  the  public  health,  in  the 
prompt  and  efficient  removal  of  all  garbage 
in  an  inoffensive  manner.  The  contract  was 
let  to  the  lowest  bidder,  as  section  Gl  of  the 
charter  provides.  It  fixes  the  price  for  re- 
moval by  the  contractor  at  .249 — practically 
one-fourth— of  a  cent  per  pound,  this  being 
the  maximum;  permits  the  contractor  to  col- 
lect the  same  from  the  householder,  the  party 
producing  the  garbage;  and  expressly  ex- 
empts the  city  from  any  liability  in  the  prem- 
ises. Appellants  contend  that  this  contract 
is  invalid  for  several  reasons:  First,  the 
contention  is  that  the  contract  is  invalid  be- 
cause the  board  of  public  works  had  no  au- 
thority to  make  it.  The  first  reason  given 
in  support  of  this  claim  is  that  the  provision 
for  payment  by  the  householder  for  the 
removal  of  his  garbage  is  an  "assessment" 
against  him  or  his  property,  and,  as  the 
charter  does  not  confer  the  power  to  make 
an  assessment  of  this  kind,  therefore  it  can- 
not be  made.  If  the  premises  were  correct, 
the  conclusion  would  necessarily  follow.  The 
infirmity  is  in  the  assumption  that  this  con- 
ti-act  provides  for  an  assessment,  either  upon 
person  or  property.  An  assessment  is  a 
charge  laid  upon  individual  property  because 
the  property  upon  which  the  burden  is  im- 
posed receives  a  special  benefit  which  is 
different  from  the  general  one  which  the 
owner  enjoys  in  common  with  others  as  a 
citizen.  Elliott,  Roads  &  S.  370.  When  the 
legislature  so  declares,  a  lien  in  the  amount 
fixed  fastens  upon  the  property  as  against 
the  owner  and  aU  who  acquire  rights  subse- 
quent to  the  time  it  attaches.  Id.  432.  An 
assessment  is  levied  only  upon  the  property 
benefited.  It  has  been  uniformly  restricted  I 
to  tlie  means  for  paying  those  local  burdens 
arising  by  reason  of  the  wants  of  small 
communities.  The  general  meaning  of  the 
word  "assessment"  is  authoritative  imposi- 
tion. Weltj',  Assessm.  pp.  2,  3.  In  this  case 
there  is  nothing  of  the  kind.  No  householder 
is  required  to  have  garbage  removed  or  pay 
for  its  removal.  Every  householder  may  de- 
stroy all  his  garbage  on  his  own  premises, 
taking  care  not  to  create  a  nuisance  in  so 
doing.  If  he  do  not  destroy  all.  he  maj'  re- 
duce it  to  a  minimum.  This  ordinance  and 
contract  simply  provides  that,  if  he  does 
produce  garbage  wiiich  has  to  be  carted 
through  the  streets,  the  city  or  its  agent, 
the  contractor,  shall  do  the  woi'k  at  his  ex- 
pense. Whatever  else  it  may  bo,  it  is  cer- 
tainly not  an  assessment.  It  has  not  a  single 
element  of  an  assessment,  for  the  reasons- 
First,  that,  except  by  the  voluntary  act  of 
the  householder,  nothing  is  to  be  paid  at  all; 
second,  no  definite  amount  in  any  event  is 
to  be  paid;  third,  nothing  is  made  a  charge 
upon  the  property.  The  whole  arrangement 
is  simply  a  provision  by  the  ordinance — First, 
that  garl>age  shall  be  collected  and  carted 
tlu-ough  the  streets  only  by  the  licensed  agent 


98 


THE  POLICE  POWER-SCOPE  AND  LIMITATIONS. 


of  the  city;    second,  that  parties  producing 
the  garbage  needing  to  be  thus  carted  away 
shall  place  the  same  in  proper  vessels,  con- 
venient for  the  removal  by  such  agent;   and, 
third,  that  such  agent  shall  charge  not  ex- 
ceeding the  price  named  for  removing  the 
I  same.     It  is   no   more  an  assessment  than 
I   is  the  provision  of  the  ordinance  fixing  the 
1  rate  of  payment  for  gas  or  water,  or  street- 
car fare,  as  authorized  by  section  59  of  the 
I    nty  charter,  or  the  numerous  provisions  of 
j    section  23,  specifying  that  the  common  coun- 
(    cil  may  require  things  done  by  the  parties, 
and,  if  not  so  done,  have  the  city  do  them 
at  their  expense,  as  taking  dovrn  dangerous 
buildings,    removing  snow    from   the   wallvs, 
etc.     It  cannot  be  said  that  the  charter  does 
not  expressly  authorize  the  fixing  of  prices 
for  removal  of  garbage,   because   the   same 
section  which  confers   upon   the  board   the 
power  "to  remove  all  dead  animals,  garbage, 
filth,  ashes,  dirt,  rubbish  or  other  offal  from 
such  city,  either  by  contract  or  otherwise," 
impliedly    authorizes    the  fixing   of    a   price 
therefor.     That   is  the   very  essence   of  the 
power   to   conti'act.      The   appellants'   learned 
counsel  say:     "But  the  charter  never  gave 
the  board  of  public  worlcs  power  to  contract 
for  removal   of   garbage  on  behalf   of   any 
one,  except  on  behalf  of  the  municipal  cor- 
poration.    Had  it  undertaken  to  confer  upon 
them  the  power  to  fix  prices  which  should 
be  paid  by  citizens  for  its  removal,  then  it 
would  have  said  so  in  express  terms,  just 
as  it  did  with  reference  to  water,  gas,  etc. 
The  fact  that  it  did  not  do  so  is  evidence 
*    *    ♦    that  it  contemplated  or  conferred  no 
such  power."     It  is  within  the  general  power 
of  a  government  to  preserve  and  promote  the 
public  welfare,  even  at  the  expense  of  pri- 
vate   rights.     18    Am.    &    Eng.    Enc.    Law, 
739,   740.     Police  power  is  defined  in   Gas- 
light Co.  V.  Hart,  40  La.  Ann.  474,  4  South. 
215,   where  it  is   said:     "It  is  the  right  of 
the  state  functionaries  to  prescribe  regula- 
tions for  the  good  order,  peace,  protection, 
comfort,  and  convenience  of  the  community, 
which   do  not  encroach  on   the  like  power 
vested  in  congress  by  the  federal  constitu- 
tion."    In   Com.   V.   Alger,   7   Cush.   53,   the 
court  lays  down  the  rule  that  "rights  of  prop- 
erty, like  all  otlier  social  and  conventional 
rights,  are  subject  to  such  reasonable  limi- 
tations in  their  enjoyment  as  shall  prevent 
them  from  being  injurious,  and  to  such  rea- 
sonable restraints  and  regulations  established 
by  law  as  the  legislature,  under  the  govern- 
ing and  controlling  power  vested  in  them  by 
the  constitution,    may   thinlv  necessary   and 
expedient"     In  Thorpe  v.   Railroad  Co.,  27 
Vt.  149,  it  is  said:     "By  this  general  police 
■  power   of   the   state,    persons   and   property 
'  are  subjected  to  all  kinds  of  restraints  and 
diligence  in  order  to  secure  general  comfort, 
health,    and   prosperity    of   the    state."      In 
Lake  View   v.    Rose   Hill  Cemetery  Co.,   70 
111.  192.  the  court  say:     "The  police  power  of 
the  state  is  coextensive  with  self-protection, 


and  is  applicably  termed  the  'law  of  over- 
ruling necessity.'  It  is  the  inherent  andi 
plenary  power  in  the  state  which  enables  it 
'o  prohibit  all  things  hurtful  to  the  comfort 
and  welfare  of  society."  Hale  v.  Lawrence, 
21  N.  J.  Law,  714;  Tied.  Lim.  §  1.  It  is  said 
in  18  Am.  &  Eng.  Enc.  Law,  744,  745,  that 
a  law  which  might  be  invalid  as  an  exercise 
of  the  right  to  tax  for  revenue  might  be 
sustainable  where  its  purpose  was  the  pro- 
motion of  the  general  public  health  or  mor- 
als. In  exercising  the  power  of  taxation,  no 
discriminations  are  to  be  made,  while  in 
the  exercise  of  police  power,  the  state  is 
ordinarily  to  be  governed  only  by  consider- 
ations of  what  is  for  the  public  welfare. 
It  rests  solely  within  legislative  discretion, 
inside  the  limits  fixed  by  the  constitution, 
to  determine  when  public  safety  or  welfare 
requires  its  exercise.  This  must  be  deter- 
mined by  recognized  principles.  "Courts  are 
authorized  to  interfere  and  declare  a  statute 
unconstitutional  onlv  M'hen  it  conflicts  with 
the  constitution.  With  the  wisdom,  policy, 
or  necessity  of  such  an  enactment  they  have 
nothing  to  do."     Id.  746. 

It  resolves  itself  solely  into  a  question  of 
power,  and  not  of  mere  reasonableness. 
We  recognize  the  rule  that  a  municipal  cor- 
poration has  no  power  to  treat  a  thing  as  a 
nuisance  which  cannot  be  one;  but  it  is 
equally  well  settled  that  it  has  the  power 
to  treat  as  a  nuisance  a  thing  that,  from  its 
character,  location,  and  surroundings,  may 
or  does  become  such.  In  doubtfid  cases, 
where  a  thing  may  or  may  not  be  a  nuisance, 
depending  upon  a  variety  of  circumstances 
requiring  judgment  and  discretion  on  the 
part  of  the  town  authorities  in  exercising 
their  legislative  functions,  under  a  general 
delegation  of  power  like  the  one  we  are  con- 
sidering, their  action,  imder  such  circum- 
stances, would  be  conclusive  of  the  question. 
Baumgartner  v.  Hasty,  100  Ind.  577-578.  In 
15  Am.  &  Eng.  Enc.  Law,  1173,  it  is  said: 
"IMtmicipal  corporations  are  usually  given 
authority  to  pass  ordinances  providing  for 
the  preservation  of  public  health.  This  is 
one  of  the  police  powers  of  the  state,  and 
there  can  be  no  doubt  that  the  sovereignty 
has  the  right  to  delegate  this  power  to  mu- 
nicipal authorities."  In  Beach  on  Public 
Corporations  (volume  2,  §  99.5)  it  is  said:  "A 
by-law  of  a  city  proliil)iting  any  person  not 
duly  licensed  by  its  authorities  from  remov- 
ing the  house  dirt  and  offal  from  the  city 
is  not  in  restraint  of  trade,  but  I'easonable 
and  valid,  on  the  ground  that,  in  the  interest 
of  public  health,  a  city  is  justified  in  provid- 
ing for  some  general  system  for  removing! 
offensive  substances  from  the  streets  by  per- 
sons engaged  by  the  city,  and  responsible  for 
the  work,  at  such  times  as  they  are  directed 
to  attend  to  it."  So,  Dillon  on  ^Municipal 
Corporations  (section  309)  is  as  follows: 
"Our  municipal  corporations  are  usually  in- 
vested with  power  to  preserve  the  health  and 
safety  of  the  inhabitants.     This  is,  indeed. 


THE  ABATEMENT  OF  NUISANCES  IN  GENERAL. 


99 


one  of  the  purposes  of  local  povernment,  and 
reasonable  by-laws  in  relation  thereto  have 
always  been  sustained  in  Knirland  as  within 
the  incidental  authority  of  curpuratious  to 
ordain.  It  will  be  useful  to  illustrate  the 
subject  by  reference  to  some  of  the  adjudged 
cases.  An  ordinance  of  a  city  prohibiting, 
under  a  penalty,  any  person  not  duly  licens- 
ed therefor  by  the  city  authorities,  from  re- 
moving or  carrying  through  any  of  the  streets 
of  the  city  any  house  dirt,  refuse,  offal,  or 
filth,  is  not  improperly  in  resti'aint  of  trade, 
and  is  reasonable  and  valid.  Such  a  by-law 
is  not  in  the  nature  of  a  monopoly,  but  is 
founded  on  a  wise  regard  for  the  public 
health.  It  was  conceded  that  the  city  could 
regulate  the  number  and  kind  of  horses  and 
carts  to  be  employed  by  strangers  or  unli- 
censed persons,  but  practically  it  was  con- 
sidered that  the  main  object  of  the  city  could 
be  better  accomplished  by  employing  men 
over  whom  they  have  entire  control,  night 
and  day,  who  are  at  hand,  and  able,  from 
habit,  to  do  the  work  in  the  best  way  and  at 
the  proper  time."  It  has  often  been  held  to 
be  reasonable  to  grant  to  one  or  more  the 
exclusive  right  to  remove  the  carcasses  of 
dead  animals  and  other  offal  of  a  city.  In 
re  Vandine,  6  Pick.  187;  Cooley,  Const.  Lim. 
(6th  Ed.)  p.  739;  Tied.  Lim.  p.- 316;  Dill. 
Mun.  Corp.  §§  141,  142.  In  the  case  of 
Boehm  v.  Mayor,  etc.  (18S3)  61  Md.  259,  it 
was  held  that  the  city,  under  the  power  to 
preserve  the  health  and  safety  of  its  inhab- 
itants, had  the  undoubted  right  to  pass  ordi- 
nances creating  boards  of  health,  appointing 
health  commissioners  with  other  subordinate 
officers,  regulating  the  removal  of  house  dirt, 
night  soil,  refu.se,  offal,  and  filth  by  persons 
licensed  to  perform  such  work,  and  provid- 
ing for  the  prohibition,  abatement,  and  sup- 
pression of  whatever  was  intrinsically  and 
inevitably  a  nuisance.  The  case  of  In  re 
Vandine,  6  Pick.  187,  is  in  point  here.  It 
directly  adjudges  that  a  by-law  of  the  city 
of  Boston  prohibiting  any  one  not  licensed 
by  the  city  from  removing  house  dirt  and 
offal  from  the  city  is  valid.  On  the  ti'ial  the 
court  instructed  the  jury  that  the  subject  of 
regulation  was  one  on  which  it  was  proper 
for  the  city  to  legislate,  it  having  reference 
to  the  public  convenience  and  the  health  of 
the  inhabitants;  *  *  *  that  it  was  the 
duty  of  the  city  to  remove  from  the  sti'eets 
and  houses  all  nuisances  which  might  gen- 
erate disease  or  bo  prejudicial  to  the  comfort 
of  the  inhabitants,  and  it  was  both  I'eason- 
able  and  proper  that  it  should  be  in  their  dis- 
cretion to  contract  with  persons  to  perform 
the  work,  so  that  it  might  l)e  done  on  a  gen- 
eral system.  If  it  were  found,  on  experi- 
ment, that  the  duty  would  not  be  thoroughly 
and  faithfully  performed,  or  would  be  at- 
tended with  more  expense  to  the  city,  if  indi- 
viduals should  remove  these  substances  in 
their  own  carts  and  upon  theii'  own  accoimt, 
it  was  competent  for  the  city  government  to 
enact  a  by-law  which  should  subject  all  such 


persons  to  the  vigilance  of  that  government, 
and  which  should  require  them  to  be  fii'st 
licensed.  The  jury  were  further  instructed 
that  so  far  as,  by  virtue  of  the  ge:K_>ral  laws 
of  the  commonwealth,  the  city  coimcil  had 
power  to  make  by-laws  for  governing  the 
city,  these  regulations  were  binding  on  all 
persons  actually  resident  within  its  limits, 
either  for  business  or  pleasure,  and  whether 
inhabitants  or  strangers;  that  the  object  of 
the  by-law  being  to  secm*e  to  the  city  the 
regular  and  effectual  removal,  by  public  au- 
thority, of  all  som'ces  of  nuisance  which  are 
collected  and  accumulated  in  the  houses  in 
tlie  city,  by  not  suffering  individuals  under 
no  obligation  of  trust  to  interfere  in  the 
same,  it  amounted  to  the  prohibition  of  a 
nuisance,  and  that,  so  far  as  it  affected  trade, 
it  was  not  a  restraint,  but  only  a  regulation,  of 
it.  The  defendant  excepted  to  these  insti'uc- 
tions,  and,  on  appeal,  urged  chiefly  that  thi- 
by-law  was  void,  being  in  restraint  of  trade: 
also,  that  it  created  a  monopoly,  and  that  th  • 
city  had  no  right  to  say  it  should  be  remove'' 
only  by  a  person  having  a  license.  In  rulin  ; 
upon  this  question,  the  court  upheld  the  ii  - 
structions  of  the  trial  court,  and  said:  "Th  • 
gi'eat  object  of  the  city  is  to  preserve  th  • 
health  of  the  inhabitants.  To  attain  tha-. 
they  wisely  disregard  any  exi^enses  whic  i 
are  deemed  to  be  requisite.  They  migh: 
probably  have  these  offensive  substances  car- 
ried out  of  the  city  without  any  expense,  if 
they  would  permit  the  people  from  the  cour- 
try  to  take  them  away  at  such  times,  and  in 
such  manner,  as  would  best  accommodat  • 
them.  Every  one  will  see  that,  if  this  busi- 
ness were  thus  managed,  there  would  be  con- 
tinual moving  nuisances  at  all  times,  and  in 
all  the  sti'eets  of  the  city,  breaking  up  the 
streets  by  their  weight,  and  poisoning  the  air 
with  their  effluvia.  *  *  *  It  seems  to  xis 
*  *  *  that  the  city  authority  has  judged 
well  in  this  matter.  They  prefer  to  employ 
men  over  whom  they  have  entire  control  by 
night  and  by  day,  whose  services  may  be 
always  had.  and  who  will  be  able,  from  hab- 
it, to  do  this  work  in  the  best  possible  way 
and  time.  Practically,  we  think  the  main 
object  of  the  city  government  will  be  better 
accomplislied  by  the  arrangement  they  have 
adopted,  than  by  relying  iipon  the  labor  of 
others,  against  whom  the  government  would 
have  no  other  remedy  than  by  a  suit  for  a 
breach  of  contract.  The  sources  of  conta- 
gion and  disease  will  be  speedily  removed  in 
small  loads,  which  will  not  injure  the  pave- 
ments nor  annoy  the  inhabitants.  We  are 
satisfied  that  tlie  law  is  reasonable,  and  not 
only  within  the  power  of  the  government  to 
prescribe,  but  well  adapted  to  preserve  the 
health  of  the  city." 

In  view  of  the  great  weight  of  authorities, 
we  are  of  the  opinion  that  the  contract  and 
ordinance  assailed  are  both  within  the  long- 
settled  and  clearly-recognized  lines  of  police 
power,  which  is  as  broad  as  the  power  of  / 
taxation,  and,  being  simply  a  sanitiu-y  regu-- 


100 


THE  POLICE  POWER— SCOPE  AND  LIMITATIONS. 


lation,  they  cannot  be  considered  as  in  the 
nature  of  confiscation  or  an  attempt  to  cre- 
ate a  monopoly.  The  provision  for  the  re- 
•  moval  of  the  garbage  at  the  exjjense  of  the 
property  holder  is  an  extreme  exercise  of  this 
power,  but  is  an  incident  of  its  existence.  It 
is  a  familiar  rule  that  if  the  power  is  con- 
ferred upon  a  municipal  corporation  by  the 
laws  of  the  state,  and  the  law  is  silent  as  to 
the  mode  of  doing  such  act,  the  corporate  au- 
I  thorities  are  necessarily  clothed  with  a  rea- 
!  sonable  discretion  to  determine  the  manner 
,  in  which  such  act  shall  be  done;  all  the 
reasonable  methods  of  executing  such  power 
are  inferred.  Louisville  Nat.  Gas  Co.  v. 
State  (decided  Sept.  19,  1S93)  34  N.  E.  702; 
Thornt.  Mun.  Law,  §  3106,  note  3,  and  cases 
cited.  The  right  of  removal,  by  contract  or 
otherwise,  being  vested  in  the  city,  it  was 
for  the  common  council  to  determine  whether 
the  work  should  be  paid  for  out  of  the  city 
treasury,  or  by  the  person  producing  the 
garbage,  and  their  action  is  not  subject  to 
review  here.  It  may  be  that  the  hotel  and 
restaurant  keepers  will  lose  money  on  their 
garbage  under  the  workings  of  this  contract, 
where  they  before  derived  a  revenue;  but  if, 
under  this  plan,  the  sources  of  contagion  and 
disease  will  be  more  speedily  and  effectively 


removed,  the  city  was  empowered  to  make 
this  contract.  It  may  be  that  the  common 
council  thought  it  unjust  that  the  household- 
ers who  produced  a  small  amount  of  garbage 
should  be  taxed  to  assist  in  removing  the 
large  accumulations  of  hotels  and  restau- 
rants, but  we  have  nothing  to  do  with  the 
motives  that  prompted  the  act  In  question. 
We  find  no  error  in  the  record.  The  judg- 
ment is  aflirmed. 

McCABE,  J.  (dissenting).  I  cannot  concnr 
in  all  the  reasoning  in  the  foregoing  opinion, 
though  I  do  not  dissent  from  the  general 
conclusion  reached.  I  am  unable  to  concur 
in  so  much  of  the  opinion  as  holds  that  per- 
sons whose  business  creates  the  large  quan- 
tities of  slops  and  offal,  and  which  is  of  large 
value,  are  liable  to  have  the  same  taken 
from  them  and  destroyed  without  compensa- 
tion. I  do  not  think  it  within  the  power  of 
the  legislature  or  the  city  to  confiscate  the 
private  property  of  the  citizen,  and  destroy 
it,  except  upon  necessity.  I  do  not  think 
there  is  any  necessity  to  do  so  with  such 
large  quantities  of  offal  and  slops  until  its 
owners  have  refused  to  comply  with  reason- 
able regulations  for  the  removal  thereof  by 
such  owners. 


EEGULATIOX  OF  OCCUPATIONS  AND  AilUSEMENTS. 


101 


Ex  parte  LACEY.      (Cr.  33.) 
(41  Pac.  411.  108  Cal.  32G.) 
Supreme  Court  of  California.     Aug.  1,  1895. 
In  bank. 

Petition  of  James  Lacey  for  writ  of  habeas 
oorpiis.     Denied. 

D.  p.  Hatch  and  R.  B.  Treat,  for  petitioner. 
C.  McFarland,  for  respondent. 

GAROUTTE,  J.  The  petitioner  has  been 
convicted  and  imprisoned  for  violating  a  city 
ordinance  of  the  city  of  Los  Angeles  which 
provides:  "No  person  or  persons  shall  estab- 
lish or  conduct  any  steam  shoddy  machine, 
or  steam  carpet-beating  machine,  within  one 
hundred  feet  of  any  church,  schoolhouse,  res- 
idence or  dwelling-house."  He  now  alleges 
the  judgment  void,  upon  the  ground  that  the 
ordinance  is  void,  and  seeks  his  release  by 
writ  of  habeas  corpus.  lie  claims  the  ordi- 
nance void  upon  the  ground  that  it  interferes 
with  certain  of  his  inalienable  rights  vouch- 
safed to  him  by  the  constitution.  Upon  the 
part  of  the  city,  it  is  claimed  that  the  pas- 
sage and  enforcement  of  the  ordinance  is  but 
the  exercise  of  a  police  power  granted  to  it 
in  terms  by  the  constitution  of  the  state. 
The  constitution  of  the  state  of  California 
(article  11,  §  11)  provides:  "Any  county, 
city,  town  or  township  may  make  and  en- 
force, within  its  limits,  all  such  local,  police, 
sanitarj-  and  other  regulations  as  are  not  in 
conflict  with  general  laws."  It  will  thus  be 
observed  that  Los  Angeles  city  is  vested 
with  certain  powers  by  direct  grant  from  the 
constitution,  and  that  gi*ant  of  power  is  not 
confined  within  narrow  limits,  but  is  broad 
and  far-reaching  in  its  scope  and  effect.  Un- 
der this  grant  of  power  the  city  had  the  right 
to  pass  this  ordinance,  unless  it  is  in  con- 
flict with  general  laws;  and  we  know  of  no 
general  laws  which  conflict  with  it,  unless  it 
can  be  said  to  be  violative  of  those  general 
principles  of  constitutional  liberty  which  form 
the  very  foundation  of  both  the  state  and 
federal  constitutions.  We  see  nothing  in  the 
language  of  this  ordinance  contrary  to  these 
great  principles  of  our  government.  We  see 
nothing  there  depriving  petitioner  of  any 
I  fundamental  right.  In  the  exercise  of  its 
police  and  sanitaiy  power,  the  city  has  at- 
tempted to  regulate  the  business  of  beating 
carpets  by  steam  power.  Under  its  constitu- 
tional grant,  it  had  the  right  to  regulate  this 
business.  The  use  of  steam  power,  of  itself, 
within  municipal  tenitory,  has  always  been 
recognized  as  a  proper  subject  of  regulation; 
and,  in  addition,  here  it  may  well  be  as- 
sumed that  the  dust  and  other  disagreeable 
and  unhealthy  matters  arising  in  such  quan- 
tities from  the  beating  of  carpets,  as  would 
naturally  be  indicated  by  the  use  of  steam 
power,  are  a  constant  source  of  danger  and 
menace  to  the  good  health  and  general  wel- 
fare of  the  neighborhood  where  located. 

Conceding  the  business  covered  by  the  pro- 
visions of  this  ordinance  not  to  constitute  a 


nuisance  per  se,  and  to  stand  upon  different 
grounds  from  powder  factories,  street  ob- 
structions, and  the  like,  still  the  case  is  made 
no  better  for  petitioner.  This  is  not  a  ques- 
tion of  nuisance  per  se,  and  the  power  to 
regulate  is  in  no  way  dependent  upon  such 
conditions.  Indeed,  as  to  nuisances  per  se, 
the  general  laws  of  the  state  are  ample  to 
deal  with  them.  But  the  business  here  in- 
volved may  properly  be  classed  with  livery  ' 
stables,  laimdries,  soap  and  glue  factories,  > 
etc.,— a  class  of  business  undertakings,  in 
the  conduct  of  which,  police  and  sanitary  i 
regulations  are  made  to  a  greater  or  loss  de-  / 
gree  by  every  city  in  the  country.  And  in  I 
this  class  of  cases  it  is  no  defense  to  the  va- 
lidity of  regulation  ordina)ices  to  say,  "I  am  / 
committing  no  nuisance,  and  I  insist  upon  / 
being  heard  before  a  court  or  jury  upon  that  / 
question  of  fact."  In  this  class  of  cases  a 
defendant  has  no  siich  right.  To  the  extent 
that  it  was  material  in  creating  a  valid  ordi-  / 
nance,  we  must  assiirae  that  such  question  / 
was  decided  by  the  municipal  authorities,  | 
and  decided  against  petitioner  and  all  others 
similarly  situated.  This  court  said  in  Ex 
parte  Shrader,  33  Cal.  2S4:  "The  legislature 
can  add  to  the  mala  in  se  of  the  common  law 
the  mala  prohibita.  of  its  own  behest.  *  *  * 
The  power  to  regulate  or  prohibit,  conferred 
upon  the  board  of  supervisors,  not  only  in- 
cludes nuisances,  but  extends  to  everj-thing 
expedient  for  the  preservation  of  the  public 
health  and  the  prevention  of  contagious  dis- 
eases. Now,  there  are  many  things  not  com- 
ing up  to  the  full  measure  of  a  common-law 
or  statute  nuisance  that  might,  both  in  the 
light  of  scientific  tests  and  of  general  experi- 
ence, pave  the  way  for  the  introduction  of 
contagion,  and  its  uncontrollable  spi-ead 
thereafter.  Slaughterhouses,  as  ordinarily, 
and  perhaps  invariably,  conducted  in  this 
country,  might,  within  the  limits  of  reason- 
able probabilit}-,  be  attended  with  these  con- 
sequences. A  competent  legislative  body  has 
passed  upon  the  question  of  fact  involved, 
and  we  cannot  go  behind  the  finding.  So  far 
as  we  can  know  by  this  record,  the  power 
conferred  has  been  exercised  intelligently, 
and  in  good  faith."  It  must  be  borne  in 
mind  that  the  court  was  not  discussing  this 
question  from  the  standpoint  that  the  con- 
duct of  a  slaughterhouse  within  municipal 
territory  constituted  a  nuisance  per  se.  In 
the  case  of  Johnson  v.  Simcnton,  43  Cal.  249, 
which  involved  the  constitutionality  of  an 
ordinance  of  the  board  of  supervisors  of  San 
Francisco  prohibiting  the  feeding  of  still 
slops  to  milch  cows,  the  court  says:  "If,  in- 
deed, it  be  a  fact  that  the  milk  of  cows  fed 
in  whole  or  in  part  uiwn  still  slop  is  un- 
wholesome as  human  food,  there  can  be  no 
doubt  of  either  the  authority  or  the  duty  of 
the  board  to  enact  the  ordinance  in  question, 
and  the  scientific  correctness  of  the  deter- 
mination by  the  board  of  the  matter  of  fact 
involved  is  not  open  to  inquiry  here."  In  the 
case  of  In  re  Jacobs,  98  N.  Y.  98,  the  court 


102 


THE  POLICE  POWER— SCOPE  AND  LIMITATIONS. 


declares  the  following  rule  for  testing  the 
validity  of  ordinances  enacted  under  the  po- 
lice power  of  a  municipality:  "When  a 
I  health  law  is  challenged  in  the  courts  as  un- 
'  constitutional  on  the  ground  that  it  arbi- 
trarily interferes  with  personal  liberty  and 
private  property,  without  due  process  of  law, 
the  courts  must  be  able  to  see  that  it  has  at 
least,  in  fact,  some  relation  to  the  public 
health;  that  the  public  health  is  the  end  nat- 
urally aimed  at;  and  that  it  is  appropriate 
and  adapted  to  that  end."  Ti-ied  by  this  rule, 
the  ordinance  in  question  fairly  and  fully 
fills  the  requirements  of  the  law.  It  cannot 
be  urged  that  petitioner  is  deprived  of  his 
property  without  due  process  of  law,  for,  as  is 
said  by  Judge  Dillion  in  his  work  upon  Mu- 
nicipal Corporations  (section  141),  in  speak- 
ing of  police  and  sanitary  regulations:  "It 
is  well  settled  that  laws  and  regulations  of 
this  character,  though  they  may  disturb  the 
enjoyment  of  individual  rights,  are  not  un- 
constitutional, though  no  provision  is  made 
for  compensation  for  such  disturbances. 
They  do  not  appropriate  private  property  for 
public  use,  but  simply  regulate  its  use  and 
enjoyment  by  the  owner.  If  he  suffers  in- 
jury, it  is  either  damnum  absque  injuria,  or, 
in  the  theory  of  the  law,  he  is  compensated  for 
It  by  sharing  in  the  general  benefits  which 
the  regulations  are  intended  and  calculated 
to  secure."     This  ordinance  is  not  unreason- 


able nor  arbitrary  nor  discriminating.  It 
treats  all  persons  alike  who  are  engaged  in 
the  business  named  therein.  AH  have  the  j 
same  rights,  and  all  are  subject  to  the  same 
burdens.  It  is  not  unreasonable  in  the  lim- 
its of  distance  fixed.  As  to  the  location  of 
the  exact  spot  distant  from  a  church  or  a 
schoolhouse  or  a  dwellinghouse,  where  an 
ordinance  would  cease  to  be  reasonable,  it  is 
not  for  this  court  now  to  say.  The  limits 
here  prescribed  are  those  with  which  we  are 
to  deal,  and  those  limitations  of  distance 
may  well  be  said  to  be  reasonable.  We  see 
no  substantial  objection  that  can  be  made  to 
the  validity  of  this  ordinance.  Upon  the 
contrary,  the  subject-matter  covered  by  it 
is  clearly  one  with  which  the  city  had  the 
constitutional  right  to  deal,  and  the  business- 
es there  enumerated  are  unmistakably  those 
which  the  municipal  authorities  had  the 
right  to  regulate,  in  the  interest  of  the  com- 
fort and  good  health  of  the  people  of  the  city. 
The  power  is  vested  in  the  city,  by  direct 
grant  from  the  constitution,  to  control  and 
regulate  business  undertakings  of  the  char- 
acter here  involved,  and  petitioner's  consti- 
tutional rights  have  in  no  way  been  tres- 
passed upon.  It  is  therefore  ordered  that  pe- 
titioner be  remanded. 

We  concur:      McFARLAND,  J.;    HARRI- 
SON, J.;    VAN  FLEET,  J.;  TEMPLE,  J. 


CONSTRUCTION  OF  BUILDINGS. 


103 


STATE  V.  JOHNSON. 

(19  S.  E.  599,  114  N.  C.  846.) 

Supreme  Court  of  North  Carolina.     April  24, 
1894. 

Appeal  from  superior  court,  Forsyth  coun- 
ty;  Boykin,  Judge. 

F.  R.  Johnson,  convicted  of  violutin,?  a  fire 
ordinance  of  the  city  of  Winston.  Appeals. 
Afhrnied. 

Watson  &  Buxton,  for  appt>llant.  The  At- 
torney General  and  Glenn  &  Manly,  for  the 
State. 

AVERY,  J.  Municipal  corporations  are  the 
creatures  of  the  legislature,  and  their  powers 
may  be  curtailed,  enlarged,  or  withdrawn  at 
the  will  of  the  creator,  whose  control  over 
them  is  limited  only  by  the  restriction  that 
no  statute  will  be  enforced  which  impairs  the 
obligation  of  a  contract,  interferes  with  vest- 
ed riglits,  or  is  in  conflict  with  any  provision 
of  the  organic  law  of  the  state  or  nation.  It 
is  too  well  settled  to  recapitulate,  or  even 
.iustify  discussion,  that  towns,— certainly,  by 
virtue  of  an  express  grant  of  authorit5^  to  do 
so,  and,  according  to  most  authorities,  by  im- 
plication arising  out  of  the  general  welfare 
clause, — if  there  is  no  general  law  to  the  con- 
trary, are  empowered  to  prescribe  a  fire 
limit,  and  forbid  the  erection  of  wooden 
buildings  Avithin  such  bounds  as  they  may, 
by  ordinance,  prescribe.  15  Am.  &  Eng.  Enc. 
Law,  1170;  1  Dill.  Mun.  Corp.  §  405;  Horr 
&  B.   Mun.   Ord.   §  232;    KUngler  v.  Bickel, 

117  Ra.  St.  32G,  11  Atl.  555.  The  weight  of 
authority  seems  to  be  also  In  favor  of  the 
proposition  th;i^  the  legislature  has  the  pow- 
er to  prevent  the  erection  of  wooden  build- 
ings in  such  corporations,  or  to  delegate  to 
the  municipalities  the  authority  to  do  so, 
even  where  the  enforcement  of  the  law  or 
ordinance  causes  a  suspension  of  work  in 
the  erection  of  structures  of  this  kind  by  per- 

I  sons  who  are  carrying  out  contracts  for  their 
I  erection  made  previously  with  the  owners  of 
the  land.  Cordes  v.  Miller,  39  Mich.  581; 
Ex  parte  Fislce,  72  Cal.  125,  13  Pac.  310. 
Persons,  in  contemplation  of  law,  contract 
with  reference  to  the  existence  and  possible 
exercise  of  this  authority,  when  it  is  vested 
in  the  miuiicipality.  City  of  Salem  v. 
Maynes,  123  Mass.  374;  Munn  v.  Illinois,  94 
U,  S.  113;    Woodlawn  Cemetery  v.  Everett, 

118  Mass.  354;   Com.  v.  Intoxicating  Liquors, 


115  Mass.  153;    Knoxville  Corp.  v.  Bird,  47 
Am.  Rep.  326.     Upon  this  same  principle,  all 
agreements  for  building  are   deemed   to  be 
entered  into  in  view  of  the  contingency  that 
such  power  may  be  granted  by  the  legisla- 
ture, when  it  has  not  already  been  delegat- 
ed,   while   the  contract  is   still  in  fieri.     15 
Am.  &  Eng.  Enc.  Law,  1171.    While  it  might 
be  unreasonable  to  prohibit  even  the  slight- 
est   repairs    to    wooden    buildings    standing 
within  the  fire  limits  prior  to  the  passage  of 
a  statute  or  ordinance  establishing  such  lim- 
its, the  power  to  prevent  repairs  is  delegated, 
and  presumably  exercised,  for  the  protection 
of  property;   and,  where  a  wooden  structure 
within  the  bounds  is  partially  destroyed  by 
a  fire  already,  it  is  not  unreasonable  to  re- 
quire a  new  roof  to  be  made  of  material  less 
liable  to  combustion,  or  to  forbid  the  repairs 
altogether  when  the  damage  to  the  building 
is   serious,   and.  to  that   end  to  compel   the 
owners  to  give  notice  to  the  town  authori- 
ties of  their  purpose  to  repair,  and  of  the 
character   of   the    contemplated    work.     Vil- 
lage of  Louisville   v.  Webster,    108  111.  414. 
We  are  aware  that  there  is  much  conflict  of 
authority  as  to  the  reasonableness  of  ordi-  . 
nances  forbidding  all  repairs,  or  the  enforce-  f 
ment   of   them    so   as   to    prevent   replacing  ' 
roofs   with    tlie   same    material   used   before 
their  destruction.     Horr  &  B.  Man.  Ord.  p. 
214,  §  233;   Brady  v.  Insurance  Co.,  11  Mich. 
425;     Ex   parte    Fiske,    supra.     But   in    this  j 
particular  instance  the  legislature  has  grant- 
ed  a    nnmicipality  the   power  to   supervise, 
or  prevent  the  replacing  of  the  roof  with  an-  I 
other  of  shingles,  instead  of  constructing  one 
of  material  less  liable  to  destruction;   and  we    i 
are  not  prepared  to  question  its  authority  to  ' 
do  so,  since,  upon  the  principle  already  an- 
nounced, persons  contracting  with  reference    • 
to  the  chances  of  the  gi-anting  as  well  as  the  ' 
exercise   of  such   powers   acquire  no  vested    i 
rights,  and  afterwards  voluntarily  incurring    I 
all  of  the   risks   incident  to  their  situation,    ^ 
have  no  reason  to  complain  of  the  loss  when   i 
it  befalls  them.    The  com-t  imposed  a  fine  of  ' 
$50.     There  was  no  attempt  to  enforce  the 
portion  of  the  ordmance  imposing  a  penalty 
of  $10  for  every  hour  the  building  was  per- 
mitted to  remain.    There  may  be  more  doubt 
as  to  the  reasonableness   of  that  provision. 
Com.  V.  Wilkins,  121  Mass.  356.     But  it  is 
not  necessary  to  pass  upon  a   question  not 
fairly  raised,  and  we  forbear  to  do  so.     Th^ 
judgment  is  aflBrmed. 


104 


THE  POLICE  POWER— SCOPE  AND  LIMITATIONS. 


KAUFMAN  V.   STEIN. 

(37  N.  E.  333,  138  Ind.  49.) 

Supreme  Court  of  Indiana.      May  8,   1894. 

Appeal  from  circuit  court,  Vigo  county;  C. 
F.  McNutt,  Judge. 

Action  by  Peter  J.  Kaufman  against 
Nieliolas  Stein  for  an  injunction.  From  a 
judgment  for  defendant,  plaintiff  appealed. 
Reversed. 

T.  W.  Harper  and  A.  B.  Felsonthal,  for 
appellant.  Jump,  Lamb  &  Davis,  for  ap- 
pellee. 

DAILEY,  J.  This  was  an  action  for  an 
injunction  commenced  by  the  appellant 
against  the  appellee.  The  appellee  entered 
an  appearance  to  the  action,  and  filed  a  de- 
murrer to  the  complaint,  for  the  reason 
that  the  complaint  "does  not  state  facts 
to  constitute  a  cause  of  action  against  the 
defendant."  The  material  allegations  con- 
tained in  the  complaint  are  as  follows:  (1) 
That  plaintiff  (appellant)  is  the  owner  of  lot 
31  in  Rose'.s  addition  to  the  city  of  Terre 
Haute;  (2)  that  there  are  upon  said  lot  a 
dwelling  house  and  other  buildings;  (3)  that 
defendant  owns  an  adjoining  lot  to  plain- 
tiff's said  premises;  (4)  that  upon  defend- 
ant's lot  there  is  a  large  frame  biiilding; 
(5)  that  both  plaintiff's  and  defendant's  lots 
are  within  the  fire  limits  of  the  city  of  Terre 
Haute;  (6)  that  the  common  council  of  the 
city  of  Terre  Haute  had  lawfully  adopted 
an  ordinance  establishing  "fire  limits,"  a 
copy  of  which  is  filed  with  the  complaint  and 
marked  "Exhibit  A,"  and  which  ordinance 
wa,s  in  full  force  at  the  time  of  the  com- 
mencement of  this  suit;  (7)  the  ordinance 
provides  that  no  wooden  buildings  shall  be 
erected  within  ,said  limits;  that  if  siich 
building  has  been  heretofore  erected  within 
said  limits,  and  it  shall  be  removed,  it  shall 
not  be  relocated  within  the  fire  limits;  (8) 
that  defendant  is  about  to  remove  the  said 
frame  building  now  on  his  lot,  and  relocate 
the  same  within  said  limit.s,  20  feet  nearer 
plaintiff's  house,  and  within  4  feet  of  plain- 
tiff's property,  and  10  feet  from  plaintiff's 
frame  dwelling  house,  thereby  increasing  the 
danger  from  fire,  and  making  the  danger  im- 
minent, increasing  cost  of  insurance,  etc.; 
(9)  that  the  defendant  has  the  tools,  men, 
and  machinery  ready  to  remove  the  same, 
and  Avill  do  so  unless  restrained;  (10)  that 
(l(>fendant  will  not  encase  hi,s  said  frame 
building  with  stone,  iron,  or  brick,  so  as  to 
render  it  fireproof.  Tlie  court  sustained  the 
demurrer,  to  which  appellant  excepted,  and 
stood  on  his  comi)laint,  whereupon  the  court 
rendered  judgment  for  appellee,  from  which 
ruling  and  action  of  the  court  appellant 
duly  appealed.  In  the  case  here  presented, 
the  complaint  avers,  and  the  demurrer  ad- 
mits, that  the  removal  and  relocation  of  the 
appellee's  frame  building,  as  threatened,  will 
put  the  appellant's  property  in  imminent 
danger  from  fire. 


From  the  briefs  of  counsel  it  appears  that  f 
one  point  made  by  counsel  for  the  appellee, ' 
In  argument  on  the  demurrer  before  the 
court  below,  was  "that  the  claintiff  was  not 
entitled  to  maintain  this  action,  but  that  the 
city  would  alone  enforce  the  penalty  pro- 
vided by  the  ordinance,"  "or,  in  other  words, 
that  an  individual  could  not  have  an  injunc- 
tion in  such  a  case,  even  if  the  ordinance  in 
question  here  was  in  all  its  provisions  valid, 
as  being  within  the  power  of  the  common 
council  to  adopt,  because  the  only  remedy 
in  such  case  was  by  a  prosecution  in  the 
name  of  the  city  for  a  violation  of  the  ordi- 
nance." Coiinsel  say  they  do  not  rely  upon 
this  proposition.  They  concede  that  "where 
an  individual  shows  that  he  suffers  or  will 
sustain  special  damages  or  injury,  above  and 
beyond  what  the  public  generally  will  suffer, 
by  reason  of  anything  which  may  constitute 
an  injiu'y  or  damage  to  the  public  generally, 
he  may  maintain  such  an  action  as  is  proper 
in  the  given  case  to  recover  damages  for,  or ; 
to  prevent,  the  doing  of  such  a  thing."  An  I 
individual  has,  and  always  had,  the  right 
to  enjoin  the  erection  or  continuance  of  a  | 
nuisance,  where  he  will  suffer  a  special  in- 
jm-y  or  annoyance,  different  in  kind  and  de- 
gree to  that  su'stained  by  the  public  gen- 
erally. Keiser  v.  Lovett,  85  Ind.  240;  Reich- 
ert  V.  Geers,  98  Ind.  73;  Owen  v.  Phillips, 
73  Ind.  285.  In  Baumgartner  v.  Hasty,  100 
Ind.  575,  at  page  579,  it  is  said:  "It  is  one 
of  the  oldest  common  law  rules  that  an  indi- 
vidual citizen  may,  without  notice,  abate  a 
nuisance,  and,  if  necessary  to  effectually 
abate  it,  destroy  the  thing  which  creates  it."  A 
wooden  building  is  not  a  nuisance  per  se.  It  is 
the  circumstances  that  make  it  a  nuisance.  A 
powder  mill  is  not  a  nuisance  per  se,  nor  is  a 
slaughterhouse  or  glue  factory,  but.  if  located 
in  populous  neighborhoods,  they  are  nuisances; 
and  "even  when  they  are  originally  built  in 
a  place  remote  from  the  habitations  of  men, 
or  from  public  places,  if  they  become  actual 
nuisances  by  reason  of  roads  being  after- 
wards laid  out  in  their  vicinity,  or  by  dwell- 
ings being  subsequently  erected  within  the 
sphere  of  their  ett'ects,  the  fact  of  their  ex- 
istence prior  to  the  laying  out  of  the  roads 
or  the  erection  of  the  dwellings  is  no  de- 
fense." Wood,  Nuis.  572;  Reichert  v.  Geers, 
98  Ind.,  at  page  75;  Baumgartner  v.  Hasty, 
supra.  In  the  case  last  cited,  Elliott,  J., 
says:  "A  wooden  building  is  not  in  itself  a 
nuisance  but  when  erected  in  a  place  pro- 
hibited by  law,  and  where  it  endangers  the 
adjoining  propcu-ty,  it  may  become  a  nui- 
,sance.  *  *  *  There  are  many  things  that 
are  not  nuisances  per  ,se,  but  which  become 
such  when  placed  in  locations  forbidden  by 
law,"  etc.,  citing  Wood,  Nuis.  §  lOi).  We, 
think  the  complaint  iindcr  consideration 
brings  this  case  within  the  nde  thus  laid 
down,  as  it  is  alleged  that  the  building  is  a 
wooden  structure,  that  it  will  be  removed 
to  a  place  within  the  fire  limits  in  violation 
of  a  city  ordinance  forbidding  it,  and  that 
it  will  be  located  within  10  feet  from  the 


CONSTRUCTIOJ^"  or  BUILDINGS. 


105 


,'  plaintiff's  frame  house,  making  the  danger 

I   imminent. 

Upon  the  proposition  "that  the  common 
council  of  the  city  of  Torre  Haute  had 
no  power  to  pass  the  ordinances  in  ques- 
tion," it  is  insisted  that,  "inasmuch  as  the 
charter  had  granted  certain  spccitic  powers 
to  the  city,  *  *  *  none  other  could  be 
exorcised."  The  charter  provisions  are 
found  in  Rev.  St.  ISSl,  §  310G  (Burns'  Rev. 
St.  1S'.)4,  §  3541,  subd.  32),  which  provides 
that  the  common  council  shall  have  power 
"to  prevent  the  erection  of  wooden  build- 
.ings  in  such  part  of  the  city  as  the  common 
council  may  determine."  Al,so  in  sections 
3108  and  31U9.  Rev.  St.  1881,  being  3()(il  and 
3fiG_',  Burns'  Rev.  St.  1804.     It  is  clear  that 

.  the    specific    power   granted   by    subdivision 

f  32,  supra,  is  to  prevent  the  "erection"  of 
wooden  buildings.  Nothing  is  said  about  the 
"removal,"  and  it  is  insisted,  therefore,  that 

I    so    much   of   the   ordinance   as   atten^pts   to 

I  prevent  tlio  removal  of  wooden  buildings 
within  or  without  the  fire  limits  is  ultra  vire.s 

/  and  void,  and  in  contravention  of  common 
I  right  of  an  owner  to  do  as  he  pleases  with 
his  own  property.  The  provisions  of  the 
ordinance  are,  in  brief,  as  follows:  Section 
1  defines  the  fire  limits;  section  2  provides 
that  no  frame  building  shall  be  erected  with- 
in the  fire  limits;  section  3  provides  a  penal- 
ty for  removing  or  assisting  to  remove  any 
frame  building  fromi  a  point  within  or  with- 
out to  a  point  within  the  said  fire  limits; 
section  4  provides  that  any  building  so  erect- 
ed or  removed  shall  be  deemed  a  nuisance; 
section   5   provides   against  the   location   of 

J  lumber  yards  within  said  hmits.  Appellant 
admits   mat  the  authority  to  pass  an  ordi- 

I  nance  against  the  removal  of  a  wooden  build- 
ing i,s  not  specifically  granted,  but  insists 
that  it  comes   within   the   intention   of   the 

[  legislature;  that  the  object  of  granting  the 
power  to  the  city  was  to  enable  the  common 

r  council  to  take  precautions  against  the  de- 

I  struction  of  the  city  by  fire.  In  the  case  of 
Clark  V.  City  of  South  Bend,  85  Ind.  2TG,  the 
same  point  was  presented  that  is  now  urged, 
but  the  court  said:  "This  is  a  more  narrow 
view  of  the  subject  than  the  books  warrant 

I  counsel  in  a.ssuming."     If  the  ordinance  in 

'  question  concerning  removals  of  buildings 
is  so  in  derogation  of  common  right  as  to 

1  be  void,  and  if  the  common  council  is  re- 
stricted in  its  legislative  acts  to  such  ordi- 

'  nances  only  as  are  literally  in  compliance 
with  the  statutes,  it  could  not  prohibit  the 

I  removal   of  frame   buildings,   but  only   the 

erection  thereof  within  the  limits,  and  any 

;  person  so  desiring  could  construct  his  house 

'  outside  of  the  fire  limits,  and  then  I'emove  it 

to  a  place  within,   and   by  a  series  of  re- 

/  movals  there  might  be  no  end  of  frame 
buildings  brought  within  such  limits.     Such 

I  consti'uction  would  permit  parties  to  accom- 

'   pli.sh  indirectly  what  they  could  not  do  di- 

j   rectly,   and   so   evade   the  ordinance  as   to 

I  render  it  nugatory.  If  the  power  is  to  be 
sti'ictly  construed,  what  is  there  to  prevent 


the  erection  of  a  lumber  yard  upon  each 
vacant  lot  of  the  city?  The  express  power 
is  "to  prevent  the  erection  of  wooden  build- 
ings." A  lumber  pile  is  not  a  building,  and 
there  is  no  express  power  given  the  city  to 
prevent  a  lumber  yard  within  the  fire  limits; 
yet  who  woidd  question  the  inherent  right 
of  the  council,  in  the  exercise  of  its  police 
power,  to  provide  against  and  inhibit  the 
heaping  of  such  combustible  material  so  as 
to  endanger  property  rights?  In  the  case  of 
Clark  V.  City  of  South  Bend,  supra,  the  ordi- 
nance prohibited  the  accumulation  of  straw. 
The  court  said:  "There  can  be  no  doubt 
that  the  legislature  meant  to  confer  broad 
powers  upon  municipalities  in  the  matter 
of  providing  against  danger  from  fires."  And 
the  ordinance  was  held  valid,  even  though, 
as  here,  there  was  no  express  power.  It  is 
simply  a  police  regulation,  and  as  is  said  in 
Brady  v.  Insurance  Co.,  11  Mich.  425,  "of 
the  power  of  the  common  council  to  pass 
tlie  ordinances  in  question  we  have  no  doubt. 
They  contravene  no  provision  of  the  consti- 
tution as  we  read  it,  and  they  were  made  in 
the  exercise  of  a  police  power  necessary  to 
the  safety  of  tlie  city."  It  is  provided  in 
section  31.55,  Rev.  St.  1881,  being  section  3(j16, 
Burns'  Rev.  St.  1894,  that  "the  common  coun- 
cil shall  have  power  to  make  other  by-laws 
and  ordinances  not  inconsistent  with  the 
laws  of  the  state,  and  necessary  to  carry 
out  the  object  of  the  corporation."  We  think 
the  ordinance  in  question  violates  no  pro- 
vision of  the  constitution  or  laws  of  this 
state,  and  that,  without  any  charter  pro- 
vision, the  ordinance  would  be  a  valid  act, 
based  upon  an  inherent  right.  We  are  aware 
that  the  doctrine  of  "inherent  right"  is  dis- 
puted in  some  of  the  states  a,s  appears  by 
the  following  authorities:  State  v.  Schu- 
chardt  (La.,  1890)  7  South.  67;  Kneedler  v. 
Borough  of  Norristown.  100  Pa.  St.  3G8;  City 
of  Des  Moines  v.  Gilchrist,  67  Iowa,  210,  25 
N.  W.  136;  Pye  v.  Peterson,  45  Tex.  312. 
But  in  15  Am.  &  Eng.  Enc.  Law,  p.  1170,  it 
is  said:  "The  decided  weight  of  authority 
in  this  country  is  that  municipal  corporations 
have  the  power,  under  the  general  welfare  I 
clauses  usually  contained  in  their  charter,s,  | 
without  express  legislative  grant,  to  estab- 
lish fire  limits,  forbidding  the  erection  of 
wooden  buildings,  etc."  To  support  this 
doctrine  the  author  cites  a  great  number  of 
decisions,  and  in  note  1  says:  "The.se  cases 
all  rest  on  solid  principle,  for  the  rule  has 
always  been  that  a  municipal  corporation 
has  the  inherent  power  to  enact  ordinances 
for  the  protection  of  the  property  of  its  citi- 
zens against  fire,"— citing  the  cases,  among 
others,  of  Clark  v.  City  of  South  Bend,  supra; 
Baumgartner  v.  Hasty,  .supra;  Northwcstirn 
Fertilizing  Co.  v.  Hyde  Park,  97  U.  S.  659; 
Kent,  Comm.  330. 

The  remaining  question  to  be  considered  is: 
Was  there  an  erection  of  a  building,  or  a  re- 
moval thereof,  within  the  meaning  of  the 
ordinance?  In  some  of  the  states  the  re- 
moval of  a  building,  and  locating  the  same 


106 


THE  POLICE  POWEE— SCOPE  AND  LIMITATIONS. 


upon  another  spot,  is  held  to  be  an  "erec- 
tion." Wadleigh  v.  Gilman,  12  Me.  403.  Al- 
so, "to  enlarge  or  elevate  a  wooden  building 
so  as  to  alter  its  character  is  an  erection  of 
such  building  within  the  meaning  of  the  or- 
dinance." Douglass  V.  Com.,  2  Rawle,  2G2. 
In  Connecticut,  however,  a  removal  taking 
place  wholly  within  the  fire  limits  is  not  such 
"erection."  Dagget  v.  State,  4  Conn.  60; 
Booth  V.  State,  Id.  65;  Tuttle  v.  State,  Id.  68; 
State  V.  Brown,  16  Conn.  54;  Brown  v. 
Hunn,  27  Conn.  334.  The  word  "erect"  is 
defined  in  Anderson's  Law  Dictionary,  p. 
410:  "To  lift  up,  build,  construct;  as,  to 
erect  a  building,  a  fixture.  Removing  a 
building  is  not  erecting  it,  nor  is  elevating 
or  materially  changing  it"  The  weight  of 
authorities  supports  the  position  held  by  the 
courts  of  Connecticut  on  this  question.  It  is 
insisted  by  the  appellee  that,  as  the  net 
threatened  does  not  contemplate  the  taking 
of  the  house  from  the  lot  it  occupies,  it 
would  not  constitute  a  removal  within  the 
meaning  of  the  ordinance.  Webster  defines 
the  word  "remove"  to  be:  "To  move  away 
from  the  position  occupied;  to  cause  to 
change  place;  to  displace;  as,  to  remove  a 
building."  Of  course,  the  removal  must  be  a 
substantial  one.  The  mere  turning  of  a 
building,  or  the  change  of  the  foundation  so 
as  to  permit  the  erection  of  a  bay  window, 
could  hardly  come  within  the  rule.  But  the 
fact  that  the  structure  is  not  to  be  taken 
fi-om  the  lot  upon  which  it  was  originally 
built,  or  where  it  stands,  cannot  be  the  cri- 
terion. The  word  "lot"  contains  no  legal 
or  other  meaning  as  to  quantity,  except  it 
is  a  distinct  portion  of  land,  usually  smaller 
than  a  field.  It  is  such  part  as  the  owner 
may  fix  in  his  plat.  It  may  be  large  or 
small.  A  man  might  move  his  house  over 
considerable  space,  and  still  leave  it  on  his 
lot.  If  the  house  were  taken  from  one 
man's  land  and  located  on  another's,  there 
can  be  no  doubt  it  woiild  be  a  removal,  and 
yet  the  test  is  not  that  by  the  contemplated 
change  the  house  is  to  be  set  in  a  particular 


spot  or  position.     The  allegation  is  that  the 
appellee  was  about  to  remove  it  20  feet  near- 
er appellant's  land,  and  within  10  feet  of  his 
house.     That  assertion  is   admitted   by   the 
demm'rer  to  be  true.     This  court  cannot  say, 
as  a  matter  of  law,  that  a  removal  of  20  feet 
is  not  a  substantial  removal  of  the  house. 
If  it  was  not  a  removal,  the  facts  showing 
that  it  was  a  mere  change  sliould  have  been 
stated  by  way  of  answer.     The  language  of 
the  complaint  is:    "That  defendant  is  about 
to  remove  the  said  frame  building  upon  his- 
lot,  and  relocate  the  same  within  said  [fire] 
limits,   20  feet  nearer  the   plaintiff's  house, 
and  within  4  feet  from  plaintiff's  property,." 
and   10  feet   from   plaintiff's   frame  house," 
etc.     It  will  be  thus  seen  the  charge  is  that 
defendant  is  about  to  remove  and  relocate 
the    entire    building.     The    expression    used  | 
negatives  the  idea  that  the  mere  form  of  the  . 
building  was  to  be  changed,  and  conclusively   [ 
shows  that  the  intended  change  materially 
increases  the  risk  and   danger  from  fire  to   1 
plaintiff's    building,    and    also    increases    the  ' 
rate   of   insurance.     It  is  true   a   removal   of  I 
20  feet  is  not  a  great  one,  but,  if  the  appeUee  / 
can  evade  the  provisions  of  the  ordinance  by 
removing  his  house  and  relocating  it  20  feet  j 
away  from  its  former   location,   on  Uke   rea- 
soning why  not  200  or  2,000  feet?     If  appel- 
lee had  sold  part  of  his  lot,  and  the  purchas- 
er had  desired  to  buy  and  remove  the  house 
in  question  20  feet  nearer  plaintiff,  and  re- 
locate it  iipon  the  part  of  the  lot  so  pur« 
chased,  would  anybody  contend  it  would  not 
constitute  a  removal?     We  think  it  can  make 
no  difference  as  to  whom  the  property  upon 
which  it  is  to  be  removed  and  relocated  be- 
longs.    When  the  common  council  of  the  city 
defined  the  fire  limits,  it  is  presumed  they 
did  so  with  reference  to  the  exact  location  of 
aU  the  buildings  within  the  limits.     In  our 
opinion,  the  court  erred  in  sustaining  the  de- 
muiTer  to  the  complaint.     For  this  error  the 
judgrnent  of  the  court  below  is  reversed,  and 
the   cause   remanded,    with    instructions   to 
overrule  said  demurrer. 


IMPOUNDING  OF  ANIMALS. 


107 


COCHRANE  V.  MAYOR,  ETC.,  OF  CITY  OF 
FROSTBURGH 

(31  Atl.  703.  81  Md.  54.) 

Court  of  Appeals  of  Maryland.     March  26,  1805. 

Appeal  from  circuit  court,  AlloKany  county. 

Action  by  Jennie  Cochrane  against  the 
niaj'or  and  council  of  Frostburgh.  Judgment 
for  defendant,  and  plaintiff  appeals.  Re- 
versed. 

Argued  before  ROBINSON,  C.  J.,  and 
BRYAN,  McSIIERRY,  FOWLER,  PAGE, 
ROBERTS,  and  BOYD,  JJ. 

Benj.  A.  Richmond  and  Robt.  R.  Hender- 
son, for  appellant.  David  W.  Sloan  and  A. 
A.  Doub,  for  appellee. 

BOYD,  J.  The  appellant  sued  the  appel- 
lee for  injuries  sustained  by  her  by  being 
horned,  tossed,  thrown  down,  and  trampled 
upon  by  a  cow  which  attacked  her  while  she 
was  walking  along  a  lane  or  street  of  Frost- 
burgh.  The  defendant  demurred  to  the  dec- 
laration, and  the  demurrer  was  sustained  by 
the  court  below,  and  judgment  entered  for 
the  defendant.  From  that  judgment  this  ap- 
peal was  taken,  and  we  are  therefore  to  in- 
quire into  the  legal  sutticieucy  of  the  declara- 
tion, and  determine  whether  the  facts  there- 
in stated,  which  are  admitted  by  the  demur- 
rer, give  the  plaintiff  a  right  of  action. 

It  is  alleged  that  the  defendant  was  by  its 
charter  vested  with  control  over  all  the 
streets,  lanes,  and  alleys  of  Frostburgh,  and 
with  full  power  to  provide  by  the  passage 
and  enforcement  of  ordinances  for  the  com- 
fort, good  order,  health,  and  safety  of  all  the 
inhabitants  of  said  town  residing  within  the 
limits  and  passing  along  and  over  its  streets, 
lanes,  and  alleys,  and  with  power  to  prevent 
and  remove  all  nuisances  in  said  town,  and 
to  shield  and  protect  said  inhabitants  there- 
from; that  the  said  town  is  laid  off  into 
streets  and  alleys,  contains  between  four  and 
five  thousand  inhabitants,  and  is  compactly 
built,  so  that  there  is  a  great  deal  of  travel 
and  walking  on  said  streets  and  alleys.  It 
is  further  averred  that  large  numl)ers  of 
horses,  cows,  hogs,  and  horned  cattle  were 
turned  loose  and  permitted  to  run  at  large 
upon  the  streets,  unattended,  during  the  day 
and  night,  by  means  of  which  "said  stock, 
and  particularly  said  cows  (they  being  armed 
with  dangerous  horns  and  equipped  with  an- 
noying bells),  became  a  common  nuisance, 
and  a  source  of  great  annoyance  and  danger 
to  persons  passing  along  said  streets  and  al- 
leys, and  particularly  so  as  to  women  and 
children,  who  were  attacked  and  friglitened 
by  said  stock,  whereby  the  safety  and  com- 
fort of  the  inhabitants  and  the  good  order  of 
said  town  were  desti'oyed,  and  whereby  the 
same  became,  and,  at  the  time  of  the  griev- 
ances hereinafter  set  out,  was,  a  common  and 
notorious  nuisance,  and  a  constant  source  of 
dangerous  discomfort  to  the  inhabitants  of 
said  town."     It  is  then  charged  that  by  rea- 


son of  the  powers  contained  In  the  charter  it 
became  the  duty  of  the  defendant  to  pass 
and  enforce  ordinances  to  abate  and  prevent 
.said  nuisance,  and  to  prevent  said  animals 
from  running  at  large,  and  require  their  own- 
ers to  keep  them  off  the  streets,  unless  at- 
tended by  some  person  in  charge  thereof; 
but  that  the  defendant,  unmindful  of  its 
duty,  negligently  and  wrongfully  failed  and 
refused  to  pass  any  such  ordinances  for  the 
preventing  and  abating  said  nuisance,  and 
negligently,  willfully,  and  wrongfully  re- 
fused to  take  any  steps  whatever  to  prevent 
said  stock  and  troublesome  and  dangerous 
animals  from  running  at  large  on  said  streets, 
and  that,  while  said  nuisance  still  continued, 
plaintiff  was  walking  on  a  street  or  lane  of 
said  city,  using  due  care  and  caution,  and 
was  attacked  by  one  of  the  said  cows  and 
horned  cattle  so  by  the  said  defendant  neg- 
ligently and  wrongfully  allowed  and  pemiit- 
ted  to  be  at  large  upon  the  said  streets,  and 
was  violently  homed,  tossed,  thrown,  and 
trampled  upon,  etc.  The  injuries  sustain- 
ed by  plaintiff  are  then  set  out  in  detail, 
showing  that  both  of  her  arms  were  broken, 
her  side  torn,  and  that  she  was  otherwise 
seriously  and  permanently  injured. 

If  the  defendant  can  be  held  responsible 
in  any  case  to  one  lawfully  using  its  streets 
for   injui-ies  inflicted  by  a  cow  ninning  at 
large,  the  allegations  in  this  declaration  are 
certainly  suiiicient  to  entitle  the  plaintiff  to 
recover,  if  she  can  siistain  them  by  compe- 
tent proof.     In  determining  whether  the  de- 
fendant  is   so   liable,    we   will   consider:    (1)  / 
Has  the  mayor  and  city  council  of  Frostburgh 
power,    under   its   charter,   to   prevent   stock  / 
from  running  at  large  within  the  corporate 
limits?     (2)  If  it  has  such  power,  what  are  / 
the  consequences  of  its  neglect  or  failure  to  ' 
do  so? 

Article  1,  §  144,  of  the  Code  of  Public  Lo- 
cal Laws  authorizes  the  mayor  and  city 
council  of  Frostburgh  to  pass  suchoi-dinances, 
not  contrary  to  law,  as  they  may  deem 
beneficial  to  the  town;  gives  the  power  ta 
remove  nuisances  and  obstructions  upon  the 
streets,  lanes,  and  alleys,  and  to  ordain  and 
enforce  all  ordinances,  rules,  and  regula- 
tions nece.ssary  for  the  peace,  good  order, 
health,  and  safety  of  the  town,  and  of  the 
people  and  property  therein;  and  authorizes 
them  to  impose  fines,  forfeitures,  or  im- 
prisonment for  the  violation  of  any  oixii- 
nances  of  the  town.  Those  powers  are,  in 
substance,  the  same  as  those  of  the  charter 
of  the  city  of  Cumberland,  which  were  pass- 
ed upon  in  the  case  of  Taylor  v.  Mayor,  etc., 
64  Md.  68,  20  Atl.  1027.  This  court  there 
held  that  the  defendant  was  authorized  and 
required  under  its  charter  to  prevent  per- 
sons from  coasting  on  the  streets,  if  it  could 
do  so  by  ordinary  and  reasonable  care  and 
diligence,  and  declared  such  use  of  the 
streets  to  be  u  nuisance.  There  was  no  spe- 
cial authority  given  in  the  charter  of  Cum- 
berland to  prevent  coasting  on  the  sti*eeitSr 


108 


THE  POLICE  POWEE— SCOPE  AND  LIMITATIONS. 


but  the  power  of  the  city  to  do  so  was  not 
only  not  questioned,  but  was  expressly  rec- 
ognized, in  that  case.  If  a  municipality  can 
without  express  powei"S  in  its  cliarter  pro- 
hibit the  use  of  its  streets  for  coasting,  why 
should  it  not  have  the  power  to  prohibit  the 
use  of  them  by  horses,  cows,  hogs,  and  horn- 
ed animals  "during  both  the  night  and  in 
daytime,  and  at  all  times  and  on  Sundays," 
as  it  is  alleged  in  the  declaration,  especially 
when  the  cows  are  "armed  with  dangerous 
horns  and  equipped  with  annoying  bells"? 
It  is  difficult  to  imagine  a  condition  of  things 
more  calculated  to  injuriously  affect,  if  not 
destroy,  "the  peace,  good  order,  health,  and 
safety  of  the  town,  and  of  the  people  and 
property  therein."  than  that  described  in  the 

!  declaration.  It  is  true  that  the  decisions  are 
not  uniform  as  to  whether  what  is  called 
"the  general  welfare  clause,"  usually  con- 
tained in  charters,  authorizes  municipal  cor- 
porations to  restrain  domestic  animals  from 
mnning  at  large,  but  many  of  them  so  hold. 
See  15  Am.  &.  Eng.  Enc.  Law,  1188,  and  note, 
where  a  number  of  them  will  be  found  col- 
lected together.  There  can  be  no  good  rea- 
son assigned  why  it  should  not,  unless  there 
be  some  statute  law  or  some  other  provision 
of  the  charter  inconsistent  with  such  con- 
struction. In  those  cases  in  which  it  is  held 
that  municipal  coii^orations  cannot  without 
special  authority  pass  and  enforce  ordinan- 
ces of  this  character  it  will  generally  be  found, 
upon  examination  of  them,  that  it  is  by 
reason  of  some  statute  or  other  special  cause 
that  would  not  apply  to  the  case  under  cooi- 
sideration.  For  example,  in  the  case  of  Col- 
lins V.  Hatch,  18  Ohio,  ."»2o.  so  much  relied 
on  by  the  learned  counsel  for  the  appellee, 
the  court  said  that  an  ordinance  to  restrain 
horses,  cattle,  swine,  etc.,  from  nmning  at 
large  could  not  be  adopted  under  the  gen- 
eral welfare  clause,  as  it  would  be  in  con- 
travention of  the  general  laws  of  tha^t  state, 
which  allowed  such  animals  to  run  at  large. 
Is  it  to  be  said  that  the  owners  of  horses, 
<:ows,  and  other  animals  can  turn  them  loose 
in  the  public  streets  of  a  town  such  as  de- 
scribed in  the  declaration,  and  the  author- 
ities have  no  means  to  prevent  it  unless  the 
legislature  has  given  them  expi-ess  power? 
It  is  not  necessary  to  detennine  whether  do- 
mestic animals  can  be  impounded  and  for- 
feited without  express  autliority  being  given 
In  the  charter,  but,  with  powers  as  broad  as 
those  in  the  charter  of  defendant,  there 
would  seem  to  be  no  valid  reason  why  it 
could  not  pass  and  enforce  ordinances  pro- 
hibiting stoclc  from  running  at  large,  and 
Imposing  penalties  for  the  violation  of  them. 

I  If  the  owners  of  cows  and  horses  tied  them 
along  the  public  streets  of  Frostburgh  so  as 
to  interfere  with  the  free  passage  of  people 
having  the  right  to  use  the  streets,  it  could 
not  be  successfully  contended  that  the  au- 
thorities were  without  remedy.  Why,  then, 
should  they  be  permitted  to  tum  them  loose, 
thereby  not  only  obsti-ucting  the  free  and 


proper   use   of   the   streets,    but   permitting 
them    to    wander    over    the    sidewalks,     to 
frighten    and    possibly    injure   women   and 
children?    It   was   contended   by  the  appel-  , 
lee  that  it  is  customary  in  this  state  to  grant ' 
special   powers  to  such    municipal   corpora-  / 
tions  as  desired  to  prevent  stock  from  run- 
ning at  large,  and  hence,  when  it  is  omitted  I 
from  a  charter,  the  presumption  is  that  it  ; 
was    not    intended    by   the   legislature    that' 
such  power  should  be  exercised.    "We  do  not  | 
think  that  such  a  conclusion  can  properly  be  I 
drawn.    Various  reasons  might  be  given  for 
such    omission.    Some   of   those    municipali- 
ties may  have  been  so  disturbed  by  animals 
running  at  large  that  they  wanted  to  empha- 
size  that  power  to   restrain   them,   or  they 
may  have  thoiitrht  it  safest  to  include  such 
powers,  to  avoid  any  question.    In  the  brief 
for  appellee  certain  towns  are  named  which 
have  the  power  expressly  granted  them  to 
prevent  cattle  from   running   at  large,   and 
it  is  stated  that  Hagerstown,  Frederick,  and 
others    have   no   such    power   conferred    on 
them.    It  would  seem  to  be  a  most  unrea- 
sonable construction  to  place  upon  the  action 
of  the  legislature  to  say  that,  inasmuch  as 
it  has  grantetl  this  express  power  to  some 
towns  of  the  state,  but  has  omitted  it  in  the 
charters     of     Hagersto\\Ti     and     Frederick, 
therefore  these  two  cities,  which  are  among 
the  largest  in  the  state,   were  intended  by 
the  legislature  to  be  prohibited  from  exer- 
cising such  powers.    Tliere  may  be  no  such 
provision   in  the  charter  of  Baltimore  city, 
yet    it    would   scarcely   be   claimed   that    it 
could    not   prohibit   stock   from    running    at 
large  under  the  general  powei"s  vested  in  it. 
The  object  of  such  a  provisiion  as  the  gen-  \ 
eral  welfare  clause  is  to  cover  those  cases 
not  specifically  designated.    It  would  be  im-  ' 
possible  to  enumerate  in  detail  in  a  charter 
of  ordinary  length  all  the  powers  that  a  cor-  j 
poration  could  exercise.    The  very  effort  to 
name  them  all  might  exclude  some  that  were  \ 
omitted,  but  would  have  been  axithorized  un- 
der the  general  welfare  clause,  if  an  attempt 
had   not    been    made   to   itemize   them.    We 
think  it   clear  that  the  defendant  has  the 
power  under  its  charter  to  pass  and  enforce 
ordinances  to  prevent  stock  from  running  at 
large  within  its  limits,  and  tliat  the  condition 
of  affairs  described  in  the  declaration  is  a 
nuisance    of   such    character   as    should    be 
abated,  for  the  peace,  good  order,  and  safety  1 
of  the  people  and  property  of  the  town. 

It  becomes  necessary,  therefore,  to  con- 
sider the  second  inquiry  above  suggested, 
namely,  what  are  the  conseqiu'nces  of  the 
neglect  or  failure  of  the  defendant  to  exer- 
cise its  powers?  We  have  been  referred  to 
a  number  of  authorities  outside  of  this  state 
to  the  effect  that  a  municipality  is  not  liable 
for  the  injuries  sustained  by  reason  of  its 
failure  to  abate  a  nui.sance,  although  it  has 
power  to  do  so.  But  that  is  no  longer  an 
open  question  in  this  state.  It  was  said  in 
Marriott's  Case,  9  Md.  174,  that,  when  a  stat- 


IMPOUNDING  OF  ANBIALS. 


109 


/  ute  conferred  a  power  upon  a  corix)raHoTi  to 
I   be  exercised  for  the  public  good,  the  exer- 

Icise  of  the  power  is  not  merely  discretion- 
ary, but  imperative,  and  the  words  "power 
and  authority"  in  such  case  may  be  con- 
strued "duty  and  obligation."  It  was  there 
.  held  that  the  city  of  Baltimore  was  requir- 
I  ed  to  pass  ordinances  sufficient  to  reach  the 
exigencies  of  the  case,  and  was  bound  to  see 
that  they  were  enforced.  Mason,  J.,  in  deliv- 
'  erinjr  the  opinion  in  that  ease,  said:  "The 
people  of  Baltimore,  in  accepting  the  privi- 
leges and  advantages  conferred  by  their 
charter,  took  them  subject  to  the  burthens 
and  restrictions  which  were  made  to  ac- 
company them  under  the  same  charter.  One 
of  those  burthens  was  the  obligation  to  keep 
the  city  free  from  nuisances.  A  disregard  of 
the  obligations  thus  imposed  would  be  at- 
tended with  the  same  consequences  which 
would  result  to  the  individual  at  common 
law  were  he  to  disregard  his  obligations  to 
the  community  in  these  particulars.  As  the 
duty  is  the  same  in  a  corporation  as  an  in- 
dividual, so  are  the  consequences  the  S'ame 
for  its  disregard."  On  page  175  the  court 
quotes  with  approval  from  the  case  of  Pitts- 


burgh V.  Grier,  22  Pa.  St.  65,  that  'It  Is  no 
matter  whether  that  duty  [removing  a  nui- 
sance] remains  unperformed  because  it  had 
no  ordinances  on  the  subject,  or  because, 
having  ordinances,  it  neglected  to  enforce 
them.  The  responsiliilities  of  a  corporation 
are  the  same  in  either  case."  In  Taylor's 
Case,  supra,  it  was  held  that  the  conwration 
was  under  an  obligation  to  exercise  for  the 
public  good  the  powers  conferred  on  it  by 
Its  charter  to  prevent  nuisances,  and  to  pro- 
tect persons  and  property.  So,  whatever 
may  be  the  law  elsewhere,  it  is  well  settled 
in  tliis  state  that  a  corporation  having  such 
powers  nj_ust  exercise  them,  and  is  ordinarily 
liable  for  its  faljure  to  do  so  to  any  person 
who  lias  received  special  damage  therefrom, 
who  is  not  himself  in  fault  Of  course,  as 
was  said  in  Taylor's  Case,  if  it  use  ordinary 
and  reasonable  care  and  diligence  to  prevent 
the  nuisance,  its  duty  is  discharged,  and  it  is 
relieved  from  responsibility,  and  a  vigorous 
effort  to  enforce  its  ordinance  on  the  sub- 
ject would  fulfill  its  duty  in  this  respect.i 
******* 

1  Part  of  the  opinion  is  omitted. 


110 


THE  POLICE  POWER-SCOPE  AND  LIMITATIONS. 


SOUTH    COVINGTON  &  C.   ST.   RY.   CO.   v. 
BERRY,  Mayor,  et  al. 

(18  S.  W.  1026,  93  Ivy.  43.) 

Court  of  Appoals  of  Kontucky.      March  19, 
1892. 

Appeal  from  chancery  court,  Campbell 
XJouDty. 

Action  by  the  South  Covington  &  Cincin- 
jiati  Street-Railway  Company  against  A.  S. 
Berry,  mayor,  and  others.  Judgment  for  de- 
fendants.    Plaintiff  appeals.     Atiirmed. 

Simrall  &  Mack,  for  appellant.  Chas.  J. 
Helm,  for  appellees. 

HOLT,  C.  J.  The  appellant,  the  South  Cov- 
ington &  Cincinnati  Street-Railway  Company, 
has  the  charter  privilege  of  operating  a  street 
rnilway  upon  certain  streets  of  the  city  of 
Newport.  The  driver  of  each  car  also  acts  as 
conductor.  The  line  has  been  operated  in 
this  way  for  over  20  years.  The  board  of 
councilmen  passed  this  ordinance:  "That  all 
street-cars  running  in  the  city  of  Newport 
shall  have  two  persons— a  driver  and  a  con- 
ductor—on each  car;  and  every  failure  to 
have  said  driver  and  conductor  on  each  car 
shall  subject  the  president  and  each  of  the 
otticers  of  the  company  controlling  said  car 
or  cars  to  a  fine  of  not  less  than  twenty-five 
dollars  or  more  than  one  hundred  dollars  for 
each  and  every  day;  and  the  police  of  said 
city  shall  cause  any  car  without  driver  and 
conductor  to  be  returned  to  the  stable."  The 
appellees,  the  mayor  and  chief  of  police  of  the 
city,  being^  about  to  enforce  the  ordinance  by 
having  the  company's  officers  arrested,  and 
its  cars  returned  to  the  stable,  this  action  was 
brought  enjoining  it. 

If  the  ordinance  was  invalid,  then,  to  pre- 
vent a  multiplicity  of  prosecutions,  and  such 
ccnsequences  as  would  necessarily  result 
from  its  enforcement,  the  company  had  a 
right  to  ask  preventive  equitable  relief.  This 
is  often  done  to  prevent  illegal  exercise  of 
power  by  municipal  authorities.  Brown  v. 
Trustees,  11  Bush,  435;  City  of  Newport  v. 
Bridge  Co.  (Ky.)  13  S.  W.  720.  The  supreme 
court  of  the  United  States  said  in  Ewing  v. 
City  of  St.  Louis,  5  Wall.  413:  "With  the 
proceedings  and  determinations  of  inferior 
boards  or  tribunals  of  special  jurisdiction 
courts  of  equity  will  not  interfere,  unless  it 
should  become  necessary  to  prevent  a  multi- 
plicity of  suits  or  irreparable  injury,  or  unless 
the  proceeding  sought  to  be  annulled  or  cor- 
rected is  valid  upon  its  face,  and  the  alleged 
invalidity  consists  in  matters  to  be  estab- 
lished by  extrinsic  evidence."  Several  ques- 
tions are  presented  as  to  the  ordinance: 
First.  Had  the  city  the  power  to  enact  it? 
Second.  Was  it  an  exercise  of  police  power? 
Third.  Does  it  impair  the  company's  contx'act 
rights?  Fourth.  Can  it  be  enforced  by  a  re- 
turn of  cars  to  the  stable?  The  city  charter 
provides:  "They  [board  of  councilmen]  shall 
have  power  to  pass  all  ordinances  and  by- 


laws, not  in  conflict  with  this  charter  or  the 
constitution  of  this  state,  that  may  be  neces- 
sary for  the  due  and  effectual  administration 
of  right  and  justice  in  said  city,  and  for  the 
better  government  thereof.     They  may  affix 
such  penalties  for  violation  of  ordinances,  not 
to  exceed  one  hundred  dollars,  or  imprison- 
ment in  the  w'ork-house  or  jail  not  exceeding 
six  months,  or  both,  in  the  discretion  of  the 
court,  for  each   offense,  as   they   may  deem 
the  good  order  and  welfare  of  the  city  may 
require."    It  also  provides:    "They  shall  have 
power  to  cause  the  removal  or  abatement  of 
any  nuisance.     *     *     *"     The  powers  of  a 
municipalitj^  are  confined  to  those  expressly 
granted,  or  those  essential  to  the  execution 
of  those  so  granted.    They  are  mere  agencies 
of  the  sovereign  authority  of  the  state,  and 
can  tlierefore  exercise  no  powers  except  those 
expressly  conferred,  or  those  essential  to  the 
accomplishment  of  the  purposes  of  the  incor- 
poration.    Tliey    must    be    either    expressly 
granted,  or  necessarily  implied  as  incident  to 
those  so  granted,  or  essential  to  the  object 
and  purposes  of  the  corporation.     Clearly  no 
power  is  attempted  to  be  expressly  given  in 
the  charter  to  regulate  the  number  of  em- 
ployes   on    the    street-railway    cars,    or   how 
they  shall  be  operated;    but,  if  the  requiring 
of  both  a  driver  and  a  conductor  be  the  exer- 
cise of  the  police  pow'er,  then  the  provision  of 
the  charter  above  cited  authorized  the  enact- 
ment of  this  ordinance.    If  it  be  not  a  police 
regulation,  but  a  mere  attempt  to  enter  into 
and  regulate  the  company's  business,  then  it 
cannot  be  sustained.    These  cars  run  between 
the  cities  of  Newport,  Covington,  and  Cincin- 
nati.   The  name  of  the  corporation  indicates 
the  line.     They  pass  through  crowded  thor- 
oughfares and  centers  of  crowded  population. 
Persons  are  constantly  getting  on  and  off  the 
cars.     They   are   in  great   part   women  and 
chfidren.    Tlie  cars  are  apt  to  be  crowded,  at 
least  in  the  morning  and  evening,  as  persons 
go  and  return  from  -their  business.     If  it  be 
said  they  have  heretofore  been  operated  with- 
out both  a  driver  and  conductor,  it  can  also 
be  said  the  cities  have  grown,  and  the  travel 
has  doubtless  increased.     While  the  privilege 
has  been  granted  to  the  company  to  operate  a 
street  railway,  yet  this  does  not  deprive  the 
city  government  of  the  powder  to  make  rea- 
sonable regulations  for  its  enjoyment  in  such 
a  way  as  will  be  consistent  with  the  safety  of 
the  public.     No  contract  right  of   the  com- 
pany  enters   into   the   question.     There   has 
been  no  attempt  to  contract  away  this  powei'. 
The  mere  granting  of  a  charter  to  operate  the 
railway  did  not  constitute  any  such  attempt; 
and,  if  it  had  been  attempted,  it  would  be  un- 
availing,  because  government  cannot   divegt 
itself  of  the  police  pokier;  and  the  passage  of 
this   ordinance,    looking,    as   it   does,    to   the 
safety  of  the  public,  was  a  proper  exercise  of 
it,    and    not   unreasonable    or    oppressive    in 
character.    The  cases  of  Railroad  Co.  v.  City 
of  Brooklyn.  37  Hun,  413,  where  a  city  ordi- 
nance required  both  a  driver  and  conductor 


REGULATIOX  OF  RAILWAYS  WITHIN  CITY  LIMITS. 


Ill 


upon  each  car;  anQ  Ravenna  v.  Pennsylvania 
Co.,  45  Ohio  St.  118,  12  N.  E.  44.5,  where  the 
ordinance  required  a  railroad  company  to 
Icecp  a  watchman  at  a  street  crossing  to  give 
-warning  to  passers-by  of  approaching  trains, 
—denied  the  power  of  the  numicipalities  to 
enact  the  ordinances,  because  the  state  legis- 
lature had  reserved  to  itself  the  power  to 
regulate  these  matters.  And  in  Darst  v. 
People,  51  111.  2S6,  where  an  ordinance  de- 
clared all  liquor  kept  within  the  town  for  the 
purpose  of  being  sold  or  given  away  and 
drank  within  the  town  a  nuisance,  and  di- 
rected the  police  to  remove  it  beyond  the 
town  limits,  it  was  held  they  could  not  seize 
and  carry  it  away  save  through  a  judicial  in- 
strumentality, as  the  owner  had  a  right  to 
have  it  determined  whether  it  was  kept  for 
sale  or  gift  to  be  drank  in  the  town,  as  in 
that  event  only  was  it  declared  to  be  a  nui- 
sance. Obviously  these  cases  ai'e  not  like 
this  one. 

It  is  said,  however,  that  no  power  existed 
to  direct  the  return  of  a  car  not  having  both 
a  driver  and  a  conductor  to  the  stable;  that 
this  is  an  enforcement  of  the  ordinance  with- 
out a  trial,  and  the  infliction  of  punishment 
before  the  party  has  l>een  found  guilty  by 
judicial  process.  It  is  in  no  sense,  however, 
a  forfeiture  of  the  property,  but  merely  au- 
thorizes an  etfective  exercise  of  the  police 
power.  If,  for  instance,  a  car  were  found 
without  both  a  driver  and  a  conductor,  is  it 
to  be  merely  stopped,  and  remain  upon  the 
street,  blockading  travel,  and  constituting  a 
nuisance?     Suppose   a   municipality,   in   the 


exercise  of  the  police  power,  were  to  forbid 
the  driving  of  elephants  or  other  wild  ani- 
mals through  its  streets,  and  some  were  found 
upon  them,  would  it  not  have  the  power  to 
direct  their  removal?  It  is  upon  this  idea 
that  the  impounding  of  stock  running  at  large 
in  a  town  or  city  may  be  authorized  by  ordi- 
nance. McKee  v.  McKee,  8  B.  Mon.  433. 
While  they  may  be  removed  from  the  streets, 
where  they,  by  reason  of  the  ordinance,  are  a 
nuisance,  yet  it  is  true  they  canix^t  be  sold, 
and  the  owner  divested  of  his  property,  with- 
out judicial  proceeding.  This  would  deprive 
him  of  his  property  without  due  process  of 
law.  Varden  v.  Mount,  78  Ky.  86.  The  ordi- 
nance in  question,  however,  does  not  attempt 
this,  but  merely  protects  the  public  from  the 
danger  existing  from  running  the  cars  with- 
out proper  control  and  sufl!icient  force;  and, 
if  it  be  attempted,  provides  for  their  removal, 
to  prevent  their  becoming  a  nuisance.  In  the 
case  of  Railroad  Ck).  v.  Richmond,  96  U.  S. 
521,  where  an  ordinance  provided  that  no  car 
or  engine  of  a  certain  railroad  should  be  pro- 
pelled by  steam  upon  that  part  of  its  track 
upon  a  portion  of  a  certain  street  in  the  city 
of  Richmond,  it  was  held  that  the  ordinance 
did  not  impair  any  vested  right  of  the  com- 
pany, nor  deprive  it  of  its  property  without 
due  process  of  law.  It  was  a  mere  regula- 
tion of  the  use  of  it  within  the  city,  and  not  a 
"taking"  within  the  meaning  of  the  consti- 
tutional prohibition.  This  is  the  effect  of  the 
ordinance  now  in  question,  and  the  judgment 
dissolving  the  injunction  against  its  enforce- 
ment is  affirmed. 


112 


THE  POWER  TO  INCUR  INDEBTEDNESS. 


STATE   ex    rel.    SCHOOL    DIST.    NO.    6   OF 

THURSTON  COUNTY  et  al.  v. 

MOORE,  Auditor. 

(63  N.  W.  130,  45  Neb.  12.) 

Supreme  Court  of  Nebraska.     May  1,  1895. 

Original  application,  in  the  name  of  the 
state,  on  the  relation  of  school  district  No. 
6  of  Thurston  county  and  the  State  Bank  of 
Pender,  for  mandamus  to  Eugene  Moore, 
auditor  of  public  accounts.     Denied. 

James  H.  Macomber,  for  relators.  A.  S. 
Churchill,  Atty.  Gen.,  for  respondent. 

HARRISON,  J.  It  appears  from  the  ap- 
plication for  a  writ  of  mandamus  in  this  ac- 
tion that  school  district  No.  6  of  Thurston 
county,  one  of  The  relators,  had  contracted  an 
indebtedness  of  $1,3G5.2G,  and  had  issued 
warrants  evidencing  the  indebtedness,  of 
which  the  State  Bank  of  Pender,  also  a 
relator,  had  become  the  owner  by  purchase. 
No  question  is  raised  in  the  pleadings  of  the 
good  faith  of  either  the  issuance  of  the  war- 
rants by  the  school  district  or  their  acquisi- 
tion by  the  bank,  nor  is  their  validity  attack- 
ed. The  school  district  was  unable  to  pay 
the  amount  due  the  bank  upon  the  warrants, 
and,  as  a  result  of  negotiations  between  its 
officers  and  the  bank,  it  was  agreed  that  the 
school  district  would  issue  its  bonds  in  the 
sum  of  $1,250,  which  the  bank  would  receive 
in  full  of  the  indebtedness.  The  bonds  were 
issued,  and  the  warrants  held  by  the  bank 
were  surrendered  and  canceled.  The  bonds 
were  presented  to  Hon.  Eugene  INIoore,  the 
auditor  of  public  accounts  (respondent  here- 
in), for  registration,  and,  upon  his  refusal  to 
register  them,  this  action  was  brought  in 
this  court,  the  relief  sought  being  to  compel 
the  auditor  to  comply  with  the  relator's  de- 
mand for  registration  of  the  bonds.  The 
auditor  demurred  to  the  petition  or  applica- 
tion of  relators,  and  thus  put  in  issue  the 
authority  of  the  school  district  to  issue  the 
bonds,  and  the  rights  of  the  parties  to  re- 
quire them  to  be  registered. 

The  law  to  which  our  attention  is  directed, 
and  pursuant  to  the  provisions  of  which  the 
relators  assert  they  acted  in  making  the 
agreement  which  they  did.  and  which,  it  is 
claimed,  empowered  the  school  district  to  Is- 
sue the  bonds  for  the  purpose  and  in  the 
manner  it  did,  was  passed  during  the  legis- 
lative session  of  1887  (see  Sess.  Laws  1SS7, 
p.  loO),  and  reads,  in  the  portion  which  we 
need  notice,  as  follows: 

"An  act  to  authorize  counties,  precincts, 
townships,  or  towns,  cities,  villages,  and 
school  districts  to  compromise  their  in- 
debtedness and  issue  new  bonds  therefor. 
*     *     * 

"Section  1.  That  any  county,  precinct,  town- 
ship, or  town,  city,  village,  or  school  district 
is  hereby  authorized  and  empowered  to  com- 
promise its  indebtedness  iu  the  manner  here- 
inafter provided. 


"Sec.  2.  Whenever  the  county  commission- 
ers of  any  county,  the  city  council  of  any 
city,  the  board  of  trustees  of  any  village,  or 
the  school  board  of  any  school  district,  shall 
be  satisfied  by  petitions  or  otherwise,  that 
any  such  county,  precinct,  township  or  town, 
city,  village,  or  school  district,  is  unable  to 
pay  in  full  its  indebtedness,  and  two  thirds 
(%)  of  the  resident  tax  payers  of  such  county, 
precinct,  township,  or  town,  city,  village,  or 
school  district,  shall  by  petition  ask  that  such 
county,  precinct,  township,  town,  city,  or 
village  or  school  district  to  compromise  such 
indebtedness,  they  are  hereby  empowered  to 
enter  into  negotiation  with  the  holder  or  the 
holders  of  any  such  indebtedness,  of  what- 
ever form,  scaling,  discounting  or  compromis- 
ing the  same. 

"Sec.  3.  Whenever  satisfactoi-y  arrange- 
ments are  made  with  the  holder  or  holders  or 
any  of  them,  of  any  such  indebtedness,  and 
upon  a  surrender  of  the  same  for  cancellation 
or  satisfaction,  the  county  commissioners,  for 
and  on  behalf  of  any  such  county,  precincts, 
townships,  or  towns,  or  the  city  council  of 
any  such  city,  or  the  board  of  trustees  of  any 
such  village  or  school  board  of  any  such 
school  districts,  upon  petition  of  two  thirds  (%) 
of  the  resident  taxpayers  of  such  county,  pre- 
cinct, township,  or  town,  city,  village,  or  school 
district  shall  have  authority,  and  they  are  here- 
by empowered  to  issue  the  bonds  of  such  coun- 
ty, precinct,  township  or  town,  city,  village,  or 
school  district,  to  the  holder  or  holders  of  the 
indebtedness  so  surrendered,  cancelled,  or  satis- 
fied for  the  amount  agreed,  upon  not  exceeding 
the  original  indebtedness. 

"Sec.  4.  Before  issuing  bonds  under  the  pro- 
visions of  this  act,  the  board  issuing  the  same 
shall  by  resolution  enter  upon  its  records  re- 
cite the  number  and  denomination  of  the 
bonds  to  be  issued,  the  rate  of  interest  and  ta 
whom  and  when  payable.  Such  bonds  shall 
be  payable  in  not  moi'e  than  twenty  (20)  years 
from  the  date  of  their  issue,  or  at  any  time 
before  maturity,  at  the  option  of  such  munici- 
pality. They  shall  bear  interest  at  a  rate  not 
exceeding  seven  (7)  per  cent.,  nor  the  rate 
borne  by  the  bond  surrendered,  with  interest 
coupons  attached,  payable  annually  or  semi- 
annually.   *    *    *" 

During  a  number  of  years  school  districts 
in  this  state  Issued  bonds  for  certain  pur- 
poses, by  virtue  of  the  right  given  them  by 
law  to  borrow  money;  this  court  holding, 
when  the  question  was  presented  to  it  for  de- 
termination, that  the  power  to  issue  bonds 
was  implied  from  the  authority  conferred  by 
statute  to  "borrow  money."  State  v.  School 
Dist.  No.  24,  13  Neb.  78,  12  N.  W.  927;  also, 
State  V.  School  Dist.  No.  4,  13  Neb.  82,  12  N. 
W.  812.  There  was  some  legislation  on  the 
subject  of  school  district  bonds,  their  issu- 
ance, registration,  etc.,  during  the  legislative 
session  of  1875  (Sess.  Laws  1875,  pp.  IIS, 
185);  and  in  1879  an  act  was  passed  Ijy  tlie 
legislature  entitled  "An  act  to  provide  for  the 
issuing  and  payment  of  school  district  bonds,'* 


THE  POWER  TO  INCUR  INDEBTEDNESS. 


113 


which  repealed  the  former  acts  on  the  subject, 
and  provided  for  the  issuance  of  bonds  to  ob- 
tain money  by  the  officers  of  school  districts, 
for  the  purpose  of  purchasing  a  site  for  and 
ei-ection  thereon  of  schoolhouses  and  furnish- 
ing the  same;  that,  prior  to  the  issuing  of 
any  bonds,  the  subject  of  the  bonding  of  the 
district  must  be  submitted  to  the  voters,  and 
two-thirds  of  the  qualified  electors  of  the 
school  district  declare  by  their  votes  in  favor 
of  issuing  the  bonds;  that  a  notice  of  such 
election  be  given  at  least  20  days  prior  to  the 
day  of  the  election;  that  no  such  vote  be  or- 
dered unless  pursuant  to  the  request  of  a  pe- 
tition, signed  by  at  least  one-third  of  the 
electors  of  the  school  district,  presented  to  the 
district  board,  suggesting  that  a  vote  be  tak- 
en in  relation  to  the  issuance  of  bonds  for  the 
purposes  specified  in  the  petition  and  within 
the  purposes  stated  in  the  act.  This  law-  of  1ST9 
has  been  amended,  but  not  so  as  to  change  its 
requirements  in  regard  to  presentment  of  a 
petition  and  the  holding  of  an  election  being 
reeessaiy  to  the  attthorization  of  an  issue  of 
bonds.  There  was  also  passed  by  the  legis- 
lature of  1S79  (Sess.  Laws  1879,  p.  17G)  "An 
act  to  provide  for  the  funding  of  outstanding 
school  district  bonds,"  which  provided  tlmt 
any  school  district  in  the  state  of  Nebraska 
which  has  heretofore  voted  and  issued  bonds 
wliich  remain  unpaid  is  authorized  to  issue 
bunds  to  be  substituted  and  exchanged  for 
the  original  bonds,  at  a  rate  not  to  exceed 
dollar  for  dollar,  and  further  providing  that 
no  vote  of  the  people  be  required  to  authorize 
the  isstie  of  the  new  bonds.  This  act  was 
amended  in  1803,  but  the  amendment  need 
not  be  further  noticed  here.  In  1887  came 
the  act  under  which  the  bonds  over  which 
this  controversy  has  arisen  were  issued,  and 
which  we  have  hereinbefore  quoted.  We 
have  shown  the  condition  of  our  law  in  ref- 
erence to  the  subject  under  consideration  to 
the  extent  it  appears  in  the  foregoing  state- 
ment, for  the  purpose,  in  the  main,  of  estab- 
lislung,  as  it  docs,  that,  prior  to  the  passage 
of  the  act  of  1887,  the  power  of  the  school 
district  board  to  issue  bonds  was  confined  to 
instances  where  the  legislature  had  author- 
ized them  to  do  so  only  when  the  proposition 
had  first  been  submitted  to  and  acted  upon 
favorably  by  the  body  of  the  district  (the 
voters),  for  at  no  time  were  the  officers  em- 
powered to  issue  bonds  except  when  the  ex- 
penditure had  the  ai)proval  of  the  electors  of 
the  district,  save  in  the  funding  act  of  1879, 
and  this  only  extended  to  bonds  Avhich  had 
been  previously  voted  and  issued,  the  indebt- 
edness evidenced  by  them  having  received  the 
consideration,  and,  by  their  votes,  the  ap- 
proval, of  the  electors  of  the  district. 

It  is  not  contended  by  the  relators  that  the 
bonds  which  the  auditor  refused  to  register 
were  issued  pursuant  to  any  election  at  which 
the  proposition  of  their  issuance  was  voted 
upon  by  the  electors  of  the  school  district  re- 
lator, but  that  they  were  executed  and  deliv- 
ered strictly  in  accordance  with  the  require- 
ABB.C0KP.-8 


ments  of  the  act  of  1SS7,  and  It  Is  not  contro- 
verted by  respondent  that  the  provisions  of 
the  law  of  1887  were  in  every  essential  ful- 
filled by  the  district  officers  in  the  issuance  of 
these  bonds.  Hence  the  main  question  for 
our  determination  is,  are  the  provisions  of  the 
act  of  1887  sufficiently  broad  to  authorize  the 
issuance  of  bonds  by  a  school  district  to  sub- 
stitute or  exchange  for  an  indebtedness  of  the 
district  other  than  a  bonded  indebtedness? 
The  other  points  noticed  are  only  incidental 
to  this,  and  important  alone  insomuch  as  they 
bear  upon  and  affect  its  disposition. 

In  the  interpretation  and  construction  of 
statutes,  one  of  the  cardinal  rules  is  that 
it  is  the  intent  of  the  law  that  is  to  be  sought 
after,  and,  if  possible,  ascertained;  and 
where  the  law  is  expressed  in  words  which 
are  clear  and  not  ambiguous,  and  no  doubt 
as  to  its  purpose  and  meaning  can  arise 
from  the  language  employed,  where  to  under- 
stand and  know  its  intent  it  is  but  necessary 
to  read,  then  there  is  no  call  for  an  inter- 
pretation; but  where  the  intention  and  mean- 
ing of  the  lawmakers,  as  expressed  in  the 
statute  enacted,  is  uncertain  or  obscure,  as 
in  the  one  now  under  consideration,  a  bare 
reading  will  not  suffice,  and  we  are  obliged 
to  resort  to  a  construction  of  its  tenns  and 
provisions.     This   statute   contemplates   the  f 

..Lie  of  bonds  by  officers  of  certain  govern- 
mental divisions  and  subdivisions  of  our  ! 
state,  and  necessarily  carries  with  it  a  re- 
sort to  the  power  of  taxation  of  the  people  ' 
to  raise  the  funds  to  meet  the  indebtedness  . 
created  by  such  action,  in  the  majority  of  in- 
stances not  accorded  until  the  proposition  ; 
involved  is  submitted  to  and  approved  by  a 
vote  of  the  electors  of  the  particular  politi- 
cal body  or  subdivision  whose  tax  bearers 
are  to  be  affected  thereby,  and  hence,  agree-  [ 
ably  to  a  well-established  rule,  is  to  be  i 
strictly  construed,  and,  where  there  is  any 
doubt,  it  must  be  resolved  in  favor  of  the  ' 
public  or  taxpayers.  The  first  section  of  the 
act  under  discussion  enumerates  the  par- 
tictilar  bodies  or  mtinicipalities  to  which 
power  is  granted,  and  contains  the  authoriza- 
tion to  compromise  indebtedness  without 
designation  of  any  particular  kind  of  in- 
debtedness. Section  2  provides  for  the  pres- 
entation of  a  petition  by  two-thirds  of  the 
resident  taxpayers  of  the  county,  city,  town, 
or  school  district,  etc.,  asking  that  such  a 
compromise  be  made,  and  empowers  the 
proper  officers  to  negotiate  with  the  holders 
of  "any  such  indebtedness,  of  whatever 
form,  scaling,  discounting,  or  compromising 
the  same."  The  words  "of  whatever  form," 
applied  in  explanation  of  the  indebtedness, 
and  making  it  include,  as  given  their  natural 
and  ordinaiy  puniort  they  do,  any  and  all 
indebtedness,  seem  to  make  the  intention  in 
relation  to  what  claims  were  in  contempla- 
tion and  referred  to  by  the  legislature  pass- 
ing the  act  plain  and  certain;  and,  if  there 
were  no  statements  in  other  portions  of  the 
law  bearing  upon  this  same  point,  we  might 


114 


THE  POWER  TO  INCUR  INDEBTEDNESS. 


well  stop  here  content  with  the  determination 
to  which  it  would  lead  us.  Section  3  of  the 
law  authorizes  the  issuance  of  the  bonds  up- 
on the  surrender  and  cancellation  or  satis- 
faction of  the  indebtedness  and  presentment 
of  a  petition  by  two-thij-ds  of  the  taxi>ayers 
requesting  such  action.  It  does  not  desig- 
nate or  indicate  any  particular  kind  of  in- 
debtedness, but  refers  to  it  in  each  instance 
by  the  use  of  the  general  term.  In  section 
4,  in  referring  to  the  bonds  to  be  issued,  it 
is  stated:  "They  shall  bear  interest  at  a 
rate  not  exceeding  seven  (7)  per  cent.,  nor 
the  rate  borne  by  the  bond  surrendered;" 
thus,  it  would  seem,  clearly  indicating  that 
it  was  an  indebtedness  evidenced  by  bonds 
which  the  legislator  had  in  mind  when  he 
framed  and  introduced  the  bill  containing 
the  act  in  question,  and  in  contemplation  of 
the  legislative  body  when  it  passed  the  act. 
From  a  study  of  the  body  of  the  law,  we 
think  it  must  be  concluded  that  there  is  a 
doubt  whether  the  compromise  of  all  kinds 
of  indebtedness  is  intended  to  be  authorized, 
or  only  those  of  a  bonded  nature.  It  is  a 
well-settled  rule  that,  if  the  meaning  con- 
vej-ed  by  the  body  of  the  act  is  uncertain 
or  in  doubt,  resort  may  be  had  to  the  title, 
and  more  especially  is  this  the  rule  in  juris- 
dictions where,  as  in  our  state,  there  is  a 
constitutional  provision  i*equiring  the  sub- 
ject of  every  bill  to  be  clearly  expressed  in 
its  title.  In  the  title  of  this  act  the  subject 
was  staged  as  follows:  "An  act  to  authorize 
counties,  iJreciucts,  townships,  or  towns,  cit- 
ies, villages  and  school  districts  to  compro- 
mise their  indebtedness  and  issue  new  bonds 
therefor."  The  portion  which  we  desire 
mainly  to  notice  is  contained  in  the  words 
"and  issue  new  bonds  therefor,"  and  more 
particularly  to  the  two  words  "new  bonds." 
The  principal  object  of  a  title  of  a  bill  is 
to  convey  to  a  person  who  reads  it  a  general 
idea  or  knowledge  of  the  contents  of  the 
act.  To  a  person  reading  the  title  of  this 
bill,  the  use  of  the  word  "new"  in  connection 
with  the  word  "bonds,"  and  allowing  to 
them  their  ordinary  signification,  as  must  be 
done,  and  refeiTing  back  and  viewing  them 


coupled  with  the  other  idea  expressed  in  the 
title, — i.  e.  the  compromise  of  the  existing 
indebtedness,— it  seems  clear  that  the  natural 
thought  would  be  bonds  new  for  bonds  old, 
given  the  appellation  "new"  in  the  title  be- 
cause issued  in  place  or  renewal  of  bonds 
which  would  be  designated  by  the  opposing 
word  "old."  We,  then,  have  the  use,  in  both 
title  and  act,  of  the  general  term  "indebted- 
ness," which,  without  anything  to  extend  or 
explain  it,  would  include  all  kinds  of  in- 
debtedness. In  one  section  it  is  stated  to 
be  intended  to  cover  indebtedness  of  what- 
ever form,  which  would  include  the  war- 
rants or  school  orders  held  by  the  bank, 
and  which  were  surrendered  on  the  is- 
suance of  the  bonds  presented,  and  which 
the  auditor  refused  to  register.  On  the  oth- 
er hand,  we  have  the  title  stating  that  the 
act  is  to  provide  for  new  bonds,  which  con- 
veys the  idea  of  compromising,  replacing,  or 
renewing  other  or  old  bonds;  a  statement 
in  the  text  that  the  bonds  issued  shall  not 
bear  interest  at  a  rate  in  excess  of  that  borne 
by  the  bonds  surrendered,  which,  to  say  the 
least,  leaves  us  in  doubt  and  renders  it  un- 
certain whether  the  law  was  intended  by 
the  legislature  to  empower  the  issuance  of 
bonds  in  the  manner  stated  therein 'for  the 
compromise  of  an  existing  indebtedness  oth- 
er than  in  the  form  of  bonds.  Add  to  these 
the  thought  that  there  was  no  provision  for 
submitting  the  proposition  of  the  issuance 
of  these  bonds  to  a  vote,  it  being  the  wise 
and  wholesome  policy  of  our  law  to  so  sub- 
mit such  questions  (involving,  as  they  nec- 
essarily do,  the  levying  of  a  tax)  to  the  deci- 
sion of  the  voters,  who  must  pay  the  tax, 
and,  further,  that  such  laws  are  the  sub- 
ject for  strict  interpretation,  and,  if  there 
is  a  doubt  as  to  the  intention,  it  must  be 
resolved  in  favor  of  the  taxpayers  or  public, 
and  we  are  constrained  to  say  that  our 
conclusion  is  that  the  act  we  are  considering 
did  not  empower  the  issuance  of  the  bonds 
to  replace  the  indebtedness,  consisting,  as  it 
did,  of  school  waiTants  or  orders,  and  the 
writ  prayed  for  in  this  action  must  be  de- 
nied. 


FOR  SCHOOL  HOUSES. 


115 


WETMORE   V.   CITY  OF   OAKLAND   et  al. 
(No.  15,412.) 

(33  Pac.  769,  99  Cal.  14G.) 

Supreme  Court  of  California.     July  25.  1893. 

In  bank.  Appeal  from  superior  court,  Ala« 
mecla  county;    W.  E.  Greene,  ,Tu(l!j:(\ 

Action  by  J.  Ij.  Wetniore  agiinst  the  city 
of  Oaldand  and  othoi-s  to  determine  the  valid- 
ity of  city  bonds  issued  for  the  purpose  of 
building  schoolh(mses.  The  bonds  were  ad- 
judged valid,  and  plaiutilt  appeals.    Alhrmed. 

Kdw.  C.  Robinson  and  E.  A.  Ilohiian,  for 
appi'll'int.  James  A.  Johnson,  Davis  &  Hill, 
and  James  W.  Goodwin,  for  respondents. 

HARRISON,  J.  The  legislature  of  this 
stat(>,  at  its  session  in  18S9,  passed  an  act  ap- 
proval JIarch  19,  1889,  authorizing  the  in- 
curring of  indebtedness  for  municipal  im- 
provements, and  issuing  bonds  therefor  by 
cities,  towns,  and  municipal  incorporations, 
(St.  1889,  p.  399,)  the  first  section  of  which 
declares  that  "any  city,  town,  or  mimicipal 
corporation  incorporated  under  the  laws  of 
this  state  may,  as  hereafter  provided,  incur 
indebtedness  to  pay  the  cost  of  any  mimicipal 
improvement,  or  for  any  pm-pose  whatever 
requiring  an  expenditure  greater  than  the 
amount  allowed  for  such  improvement  by 
the  annual  tax  levy."  By  the  next  section 
of  the  act  it  is  provided  that  whenever  the 
legislative  branch  of  the  mimicipal  coiTpora- 
tion  shall  determine  that  the  public  interest 
or  nooessitj'  demands  the  acquisition,  con- 
struction, or  completion  of  any  municipal 
buildings  or  other  municipal  improvements, 
whose  cost  will  be  too  great  to  be  paid  out 
of  the  ordinary  annual  income  and  revenue 
of  the  municipality,  it  may  call  an  election 
for  the  purpose  of  determining  whether 
bonds  of  the  miuiicipaUty  shall  be  issue^l 
for  such  improvement,  and  if  the  proposi- 
tion shall  receive  the  vote  of  two-thirds  of 
the  votei-s  voting  at  such  election  such  bonds 
may  be  issued.  September  23,  1891,  the 
council  of  the  city  of  Oakland  passed  an  or- 
dinance by  which  it  declared  that  the  public 
interest  and  necessities  of  the  city  of  Oak- 
land demanded  the  acquisition,  construction, 
and  completion  of  certain  municipal  build- 
ings and  improvements  in  that  city  for  pid)- 
lic  school  purposes,  viz.  certain  designated 
schoolhouses,  and  that  the  cost  thereof  would 
be  too  great  to  be  paid  out  of  the  ordinary 
aimual  income  and  revenue  of  the  city;  and 
afterwards  passed  an  ordinance  that  the 
question  of  issuing  bonds  therefor  to  the 
amount  of  $400,000  be  submitted  to  the  vot- 
ers of  the  city  at  a  special  election  to  be 
held  for  that  purpose.  At  that  election,  more 
than  two-thirds  of  the  voters  having  voted 
for  the  issuance  of  the  bonds,  suitable  ordi- 
nances were  passed  by  the  council,  and  bonds 
of  the  city  to  the  amomit  of  .$400,000  wen' 
issued  and  sold  piior  to  Jaruary  1,  1S93. 
and  the  proceeds  placed  in  tlie  city  treasury. 
In   June,    1893,    the    appellant   having    chal- 


lenged the  validity  of  these  proceedings,  an 
agreed  ca.se  was  submitted  to  the  superior 
court  of  Alameda  coimty,  under  the  provi- 
sions of  section  11.38,  Code  Civil  Proc,  for 
the  purpose  of  having  a  determination  by 
tliat  court  of  the  validity  of  the  bonds. 
The  superior  court  adjudged  that  tliey  were 
valid  obligations  of  the  city  of  Oakland,  and 
from  its  judgment  this  appeal  has  been 
taken. 

The  proposition  presented  by  the  appel- 
lant in  support  of  his  appeal  is  that  the  uni- 
nieipality  of  the  "city  of  Oakland"  has  no 
power  to  issue  its  bonds  for  the  constnic- 
tion  of  schoolhouses,  for  the  reason  that  the 
management  of  its  schools  is  vested  in  a 
board  of  education,  and  that  any  bonds  to  be 
issued  for  school  purposes  must  be  authorized 
by  that  body.  The  city  of  Oakland  is  gov- 
erned by  a  freeholders'  charter,  wliich  was 
approved  by  the  legislature  February  14, 
1SS9.  St.  1SS9,  p.  513.  Under  this  charter 
the  legislative  power  of  the  city  is  vested  in 
a  council  of  11  members,  and  the  government 
of  the  school  department  is  vested  in  a  board 
of  education  consisting  of  11  members.  The 
board  of  education  is  by  the  charter  vested 
with  authority  to  "build  schoolhouses"  upon 
plans  approved  by  it,  but  the  work  of  build- 
ing the  schoolhouses  is  to  be  carried  on 
through  the  medium  of  a  board  of  public 
works.  It  is,  moreover,  expressly  declared 
in  the  charter  (section  131)  that  the  board 
of  education  "shall  not  have  power  to  con- 
tract any  debts  or  habilities  in  any  form 
wliatsoever  against  tlie  city,  exceeding  in  any 
year  the  income  and  revenue  provided  for 
the  school  fund  for  such  year."  By  sec- 
tion 149  of  the  charter  it  is  provided  that 
"whenever  the  council  shall  determine  that 
the  pul)lic  interest  requires  tlie  construction 
or  acquisition  or  completion  of  any  perma- 
nent municipal  building  *  ♦  *  the  cost  of 
which  in  addition  to  the  other  expenditures 
of  the  city  will  exceed  the  income  and  rev- 
enue provided  for  in  any  one  year,  they 
may  by  ordinance  submit  a  proposition  to 
incur  a  debt  for  such  pui-pose,  and  proceed 
ther(>in  as  provided  in  section  18,  of  article 
11,  of  the  constitution  of  this  state  and  gen- 
eral law."  By  tliis  section  of  the  charter 
the  same  authority  is  conferred  upon  the 
council  to  create  a  bonded  indebtedness  as 
is  given  by  the  aforesaid  act  of  the  legis- 
lature, but  the  act  of  the  legislature  pre- 
scribes tlie  steps  to  be  taken,  and  is  the 
"general  law"  under  which  it  is  necessary 
for  the  council  to  proceed  in  incurring  such 
indebtedness.  The  provisions  of  the  act  of 
March  19,  1SS9,  are  general  in  their  char- 
acter, and  give  to  every  mimicipal  corpora' 
tion  incorporated  under  the  laws  of  this  state 
the  power  to  create  a  bonded  indebtedness 
for  any  of  the  purposes  autliorized  by  the  act. 
The  indebtedness  is  not  to  be  incurred,  nor 
are  the  bonds  to  be  issued,  until  after  the 
voters  of  the  municipality  have  so  directed; 
but,  as  it  is  the  vote  of  the  electors  which  de- 


116 


THE  POWER  TO  INCUR  LS^DEBTEDNESS. 


termines  that  they  shall  be  issued,  it  is  im- 
material to  them  what  officers  of  the  city  car- 
ry out  this  vote.  The  act  itself  designates 
the  legislative  branch  of  the  municipality  as 
the  body  to  determine  in  the  first  instance 
whether  the  public  interest  or  necessity  de- 
mands the  construction  or  completion  of  the 
building  or  improvement,  and  also  designates 
that  body  as  the  agency  of  the  coi-poration 
through  whose  acts  the  indebtedness  is  to  be 
created  and  evidenced.  There  is  no  partic- 
ular mode  provided  by  which  the  council 
shall  ascertain  this  fact,  but,  in  a  matter 
wliich  pertains  to  the  public  schools,  the 
fact  would  naturally  be  ascertained  by  direct 
communication  with  the  board  of  education, 
or  by  a  request  from  that  board,  and,  in- 
asmuch as  that  board  has  no  power  to  is- 
sue the  bonds  of  the  city,  it  is  but  natural 
to  assume  that  it  would  manifest  its  wishes 
to  the  council.  The  question,  however,  is 
not  how  the  coimcil  shall  ascertain  whether 
the  public  interest  demands  the  improve- 
ment, but  whether  it  has  any  power  to  issue 
the  bonds  after  it  has  so  determined,  irre- 
spective of  the  mode  of  ascertaining  it.  Al- 
though the  board  of  education  has  been  in- 
trusted with  the  management  of  the  schools, 
and  it  is  the  body  designated  in  the  charter 
to  build  the  schoolhouses,  there  is  nothing 
inconsistent  with  this  provision  for  the  legis- 
lature to  designate  the  council  as  the  body 
^to  give  inception  to  the  indebtedness  and 
issue  the  bonds  therefor.  The  power  to 
biiild  or  improve  the  schoolhouses  which  is 
vested  in.  that  board  is  distinct  from  the 
power  to  borrow  money  with  which  to  biiild 
or  improve  them.  The  board  of  education, 
as  such,  is  forbidden  by  the  charter  from  in- 
curring any  indebtedness  beyond  the  annual 
income  for  school  purposes,  and  as  the  con- 
stitution permits  such  indebtedness  by  any 
municipal  corporation  only  after  a  vote  of 
the  electors  therefor,  it  is  competent  for  the 
legislature  to  designate  the  agent  or  body  of 
the  municipal  government  which  shall  act 
for  it  in  carrying  out  the  will  of  its  electors, 
and  for  this  purpose  the  legislative  branch 
of  that  government  would  most  naturally  be 
selected. 

That  the  education  of  the  youth  is  prop- 
erly included  within  the  functions  of  a 
municipal  government  cannot  be  denied.  A 
municipal  coriioration  is  but  a  branch  of  the 
state  government,  and  is  established  for  the 
purpose  of  aiding  the  legislature  in  making 
provision  for  tlie  wants  and  welfare  of  the 
public  within  the  teiTitory  for  which  it  is  or- 
ganized, and  it  is  for  the  legislature  to  de- 
termine the  extent  to  whicli  it  will  confer 
upon  such  corporation  any  power  to  aid  it 
in  the  discharge  of  the  ol)ligation  which  the 
constitution  has  imposed  upon  itself.  The 
constitution  has  declared  (article  9,  §  1) 
that,  "a  general  diffusion  of  knowledge 
and  intelligence  being  essential  to  the 
preservation  of  the  riglits  and  liliorties  of 
the  people,   the  legislature  shall   encourage 


by  all  suitable  means  the  promotion  of  in- 
tellectual, scientific,  moral  and  agricultural 
improvement."  In  furtherance  of  this  duty 
the  legislature  has  made  provision  in  the 
Political  Code  for  a  system  of  public  schools 
throughout  the  state;  and  in  the  municipal 
government  act,  which  was  enacted  in  1SS3, 
providing  for  the  organization  of  municipal 
corporations,  it  has  included  a  school  depart- 
ment for  the  first  five  of  the  several  classes 
of  municipal  corporations  therein  provided 
for.  In  each  of  the  freeholders'  charters 
that  has  been  approved  by  it  an  educational 
department  has  been  established,  and  pro- 
vision made  for  education,  and  for  the  exer- 
cise of  municipal  functions  in  reference 
thereto.  As  schoolhouses  are  essential  aids 
in  the  promotion  of  education,  their  erection 
is  but  incidental  to  the  maintenance  of  the 
schools,  and  falls  as  completely  within  the 
fimctions  of  a  municipal  government  as  does 
the  erection  of  a  hospital  for  its  indigent 
poor,  or  buildings  for  its  fire  engines;  and 
the  schoolhouses,  when  so  erected,  are  as 
fully  municipal  buildings  as  are  its  engine 
houses  and  hospital  buildings.  Danielly  v. 
Cabaniss,  52  Ga.  222;  Horton  v.  Commis- 
sioners, 43  Ala.  508.  In  Board  v.  Fowler, 
19  Cal.  24,  the  validity  of  a  reservation  by 
the  Van  Ness  ordinance  of  certain  lots  for 
school  purposes  was  involved,  and  the  su- 
preme coui't  said:  "The  school  department 
of  the  municipality  is  only  a  part  of  its 
government.  A  reservation  of  property  for 
school  purposes  is  not  a  disposition  of  it 
for  the  benefit  of  third  persons,  but  a  keep- 
ing of  it  for  its  own  purposes.  The  resolu- 
tion amounts  only  to  the  setting  apart  of 
property  of  the  town  for  a  particular  town 
purpose,  and  in  this  respect  is  not  different 
from  a  similar  act,  if  such  had  been  done, 
declaring  that  the  plaza  should  be  reserved 
as  a  public  garden,  or  a  lot  for  a  ^aW,  or  a 
house  for  the  holding  of  com-ts."  See,  also, 
Board  v.  Martin,  92  Cal.  209,  28  Pac.  Rep. 
799. 

The  provisions  of  sections  1880-1887  of 
the  Political  Code  for  the  issuance  by  the 
supeiTisors  of  the  county  of  school-district 
bonds  whenever  the  electors  of  the  district 
shall  vote  therefor,  to  pay  for  the  building 
of  schoolhouses  in  the  district,  do  not  limit 
or  qualify  the  power  confeiTcd  by  the  act  of 
March  19,  ISSO,  upon  an  incorporated  city 
to  issue  its  own  bonds  for  the  same  purpose, 
notwithstanding  the  provisions  of  section 
1576  of  the  same  Code,  making  such  incor- 
porated city  a  school  district.  Each  of 
these  acts  is  a  general  law  upon  a  siibject 
within  legislative  power,  and,  if  there  is  any 
inconsistency  between  them,  that  which  is 
later  in  date  must  prevail  over  the  earlier 
act.  There  is  not,  however,  any  inconsist- 
ency between  the  two  acts.  Th(^  bonds 
authorized  by  these  sections  of  the  Political 
Code  are  different  obligations  from  those 
issued  by  the  municipal  corporation  undvr 
the  act  of  March   19,   1SS9.     A  school   dis- 


FOR  SCHOOL  HOUSES. 


117 


1  trict  has  not,  like  an  incorpnratod  city,  any 
financial  oflicors,  nor  has  it  Itcon  intrust  (h1 
with  the  power  of  assessment  and  taxation 
which  is  confen-ed  upon  an  incorporated 
city,  and  for  these  reasons  as  well  as  others 
the  legislature  would  naturally  intrust  to 
the  supervisors  of  the  county,  as  beins  the 
body  havint:  the  financial  supervision  of  the 
school  district,  tlie  function  of  issuing  and 
providing  for  the  payment  of  school  district 
bonds;  and    as    by    the    constitution    bonds 

I  cannot  in  any  case  be  issued  except  upon 
the  vote  of  two-thirds  of  the  qualified  elect- 
ors of  the  district  voting  upon  the  question 
of  their  issuance,  the  agency  by  which  they 
might  be  executed  would  seem  immaterial, 
and  there  would  be  little  likelihood  of  an 
issuance  being  authorized  to  be  made  for 
the  same  purpose  by  each  agency.  It 
is,  however,  unnecessary  to  determine 
whether  the  power  to  issue  bonds  con- 
ferred by  these  sections  of  the  Political 
Code  exists  in  favor  of  the  school  dis- 
trict as  a  coiTJoration,  as  well  as  of  the 
incorporated  city  which  constitutes  the 
school  district,  or  whether  it  has  been  super- 
seded by  the  power  conferred  upon  the  city, 
as  the  bonds  in  question  are  those  of  the 
municipal  corporation,  and  not  of  the  school 
district;  but,  even  if  it  should  be  conceded 
that  the  power  to  issue  bonds  for  the  same 
purposes  rests  in  the  supervisors  at  the  in- 
stance of  the  school  district,  and  also  in  the 
city  itself,  the  bonds  which  are  authorized 
by  the  Political  Code  are  to  be  issued  in  the 
corporate  name  of  the  school  district,  which 

by  section  1575  of  that  Code  must  be  " 

district  of county,"  whereas  the  bonds 

in  question  are  those  of  the  municipality  of 
the  city  of  Oakland,  and  their  validity  is  to 
be  determined  by  tlie  power  of  the  municipal 
corporation  to  issue  them. 
The  question  presented  in  Kennedy  v.  Mil- 


^/ 


ler.  .'^2  Pac.  Rep.  n.'S,  was  the  right  of  thi< 
troasm-er  of  the  city  of  San  Diego  to  demand 
from   the   county   treasurer  the  custody    of 
certain  public  school  moneys  apportioned  to 
the  school  district  of  San  Diego,  which  had 
been   derived    from    sources    outside  of   the 
municipality,   and   not  througli  any   agency 
of  the  city,  viz.  the  state  school  fund  and 
taxes    levied    by    the    supervisors    of    the 
county,    and    it    was    held    tliat    thi/'y    were 
moneys  whose  custody  had  been  placed  by 
the   legislature    with    the   county   treasurer. 
The  power  of  the  city  to  raise  m.oney  with- 
in its  own  territory  for  school  purposes  by 
tax  or  otherwise,   or  to  retain  the  custody 
or  make  the   disbiu'sement  of   any  moneys 
which  might  be  raised  from  taxes  levied  by 
its  council,  did  not  arise  in  that  case.    On 
the   contrary,   we  said   that   "the  city   is 
corporation  distinct  from  that  of  the  school 
district,    even    though   both    are    designated 
by  the  same  name,  and  embrace  the  same 
territory.     The    one    derives    its    authority 
directly    from    the    legislatiire    through    the  I 
general  law  providing  for  the  establishment 
of  schools  throughout  the  state,   while  the  I 
authority  of  tlie  other  is  found  in  the  char- 
ter   under    which    it    is    organized;"  and    it 
follows  that  the  acts  of  each  corporation  are   t 
to    be    measured    by    the    authority    under  f 
which  they  are  performed,  and  their  valid-  ' 
ity  determined  by  a  comparison  with  that 
authority.     We  hold,  therefore,  that  the  city  j 
of  Oakland  had  the  power,  under  the  pro-  / 
visions  of  the  act  of  March  19,  ISSD,  to  is- 
sue the  bonds  in  question,   and,   as  it   was 
conceded  at  the  argument  that  all  the  pro- 
visions of  that  act  had  been  complied  with, 
the  judgment  of  the  superior  court  is  af- 
firmed. 

We    concur:    BEATTY,    C.    X;   PATER- 
SON,  J.;  FITZGERALD,  J.;  DE  HAVEN,  J. 


118 


THE  POWER  TO  INCUR  INDEBTEDNESS. 


SIMRALL  V.  CITY   OF   COVINGTON. 

MACKOY  V.  SAME. 

(29  S,  W.  880.) 

Court  of  Appeals  of  Kentucky.     Feb.  26,  1895. 

Appeals  from  circuit  court,  Kenton  county. 

"Not  to  be  officially  reported." 

Separate  actions  by  C.  D.  Simrall  and  Wil- 
liam H.  Mackoy  against  the  city  of  Coving- 
ton. From  a  judgment  in  each  case  dismiss- 
ing the  petition,  plaintiffs  appeal.     Reversed. 

Wm.  Goebel  and  W.  W.  Cleai-y,  for  appel- 
lants.    W.  A.  Byrne,  for  appellee. 

PRYOR,  C.  J.  These  two  cases  come  from 
the  Kenton  circuit  court,  and,  as  they  involve 
similar  questions,  will  be  considered  togeth- 
er. The  two  appellants,  Mackoy  and  Sim- 
rall, had  been  employed,  as  they  alleged,  by 
the  trustees  of  the  Covington  reservoir,  to 
conduct  the  defense  on  the  part  of  the  board 
of  trustees  in  actions  instituted  against  that 
board  by  Casparis  &  Co.,  arising  out  of  a 
contract  between  the  pai-ties  to  the  action 
for  construction  of  water  reservoirs,  and  all 
things  necessary  mentioned  in  the  contract, 
to  supply  the  city  of  Covington  with  water. 
Casparis  claimed  a  breach  of  contract  on  the 
part  of  the  board,  abandoned  the  contract, 
and  suits  were  instituted  by  him  involving 
large  sums  of  money,  exceeding  in  amount 
?oOO,000.  The  board  of  ti-ustees,  having  com- 
pleted the  waterworks,  turned  them  over  to 
the  city  of  Covington,  and  thus  ended  their 
right  to  longer  control  them.  The  liability 
of  the  city  is  alleged  to  exist  for  the  follow- 
ing reasons:  An  amendment  was  had  to  the 
charter  of  the  city  by  which  its  council  was 
authorized  to  appoint  a  board  of  trustees, 
five  in  number,  who  were  to  have  these  wa- 
ter reservoirs  constructed,  and  their  control 
until  completed  was  committed  to  this  board, 
under  the  name  and  style  of  the  "Trustees 
of  Covington  Resei-voir."  This  board  was 
"authorized  to  sue  and  be  sued,  to  contract 
and  be  contracted  with,"  to  purchase  and 
condemn  land  necessary  for  the  improve- 
ment, to  issue'and  sell  bonds  of  the  city,  to 
appoint,  employ,  and  pay  officers,  agents,  and 
enfployes,  and  to  do  all  acts  necessary  for 
the  completion  of  the  work.  The  act  also 
provided  that  this  board  should  continue  in 
office  until  the  works  or  improvements  were 
completed  and  in  operation,  and  for  not 
longer  than  two  months  thereafter.  The 
trustees  were  duly  appointed  and  qualified, 
and,  as  before  stated,  had  completed  the  im- 
provement, and  ceased  to  have  any  further 
control.  Bonds  of  the  city  had  been  issued 
and  sold  for  the  purpose  of  this  work  ex- 
ceeding $1,000,000,  under  various  legisla- 
tive enactments.  The  trustees,  anticipating 
trouble  with  Casparis  &  Co.,  the  contractors, 
at  a  called  meeting  of  their  board  in  July, 
1889,  by  an  order  of  the  board,  directed 
Judge  O'Hara,   who  was  a  member  of  the 


board,  to  contract  for  the  employment  of 
the  appellants.  At  a  meeting  of  the  board 
held  on  August  7,  1889,  Judge  O'Hara  made 
a  written  report  to  the  board,  as  follows: 
"Covington,  Kentucky,  August  7th,  1889.  To 
Trustees  Covington  Reservoir:  The  under- 
signed, appointed  by  a  resolution  of  the 
boai'd  at  the  extra  session  held  July  31,  1889, 
to  employ  C.  B.  Simrall  and  W.  H.  Mackoy 
to  represent  the  trustees  in  any  litigation 
they  may  have  with  Casparis  &  Co.,  begs  to 
report  that  he  has  agreed  with  these  gen- 
tlemen that  they  shall  render  such  services 
as  may  be  required  of  them  in  such  litiga- 
tion, and  that  the  undersigned  is  to  fix  the 
fee  for  such  services  to  be  paid  each  of  them 
by  this  board  after  the  services  shall  have 
been  performed.  J.  O'Hara."  This  report 
was  adopted,  and  in  April,  1890,  Judge 
O'Hara  requested  of  the  two  attorneys  to 
sign  an  agreement  by  which  he  was  to  fix 
their  compensation.  They  each  signed  an 
agreement  to  that  efCect,  as  follows:  "Cov- 
ington, Kentucky,  April  15th,  1890.  I  have 
heretofore  been  employed  by  Judge  O'Hara, 
as  one  of  the  attorneys  of  the  trustees  of 
Covington  reservoir  in  their  litigation  with 
Casparis  &  Co.,  contractors,  with  them,  for 
the  construction  of  the  Covington  reservoir, 
and  then  and  now  agree  that  the  compensa- 
tion for  my  services  to  them  in  this  behalf 
shall  be  fixed  by  said  O'Hara  when  the  serv- 
ice is  rendered."  The  writings  signed  by 
the  attornej^s  were  reported  back  to  the 
board,  and  concurred  in.  It  is  alleged  that  a 
protnu-tod  litigntion  followed,  and  pending 
the  litigation,  or  when  the  work  was  com- 
pleted, the  trustees  turned  over  to  the  city 
the  balance  of  cash  in  their  hands,  and  no 
longer  acted  as  agents  or  trustees  for  the 
city.  When  the  litigation  terminated,  w'hich 
was  after  the  waterworks  had  been  con- 
j  structed.  Judge  O'Hara  was  applied  to  by 
the  appellants  to  fix  their  compensation,  as 
provided  by  the  agreement  and  approved 
by  the  board  of  ti'ustees,  and  in  the  month  of 
November,  1892,  determined  the  compensa- 
tion to  be  paid  each  of  the  attorneys,  in  writ- 
ing. "Being  called  upon  by  C.  B.  Simrall, 
Esq.,  to  fix  the  amount  of  his  fee  for  services 
rendered  by  him  in  defense  of  the  action  of 
Casparis  &  Co.  against  the  trustees  of  the 
Covington  reservoirs  in  the  U.  S.  circuit  court 
at  this  place,  and  for  such  services  as  he 
rendered  them  in  the  controversy  between 
said  parties  arising  out  of  the  contract  be- 
tween them  and  said  Casparis  &  Co.  for  the 
construction  of  the  reservoirs,  in  association 
with  W.  H.  Mackoy,  Esq.,  pursuant  to  an 
agreement  between  him  and  said  trustees,  I 
have  fully  considered  his  own  statement,  and 
the  opinions  of  attorneys  submitted  by  him, 
and  those  submitted  by  Mr.  Byrne,  the  solic- 
itor of  the  city  of  Covington,  and  have  in- 
cluded in  my  consideration  my  own  knowl- 
edge of  the  services  and  the  rate  of  charges 
for  attorneys'  services  prevailing  in  Ken- 
tucky within  the  range  of  my  practice  as  an 


FOR  SERVICE  OF  ATTORNEYS. 


119 


attorney  for  more  than  thirty  years  p>Tst,  and 
am  of  opinion,  and  so  decide,  that  eleven 
thousand  five  hundred  dollars  is  a  fair  and 
reasonable  compensation  to  Mr.  Simrall  for 
his  said  seiTices,  and  fix  his  fee  at  that 
amount,  from  which  is  to  be  deducted  any 
sum  or  sums  already  received  by  him,  if  anj-, 
in  that  bclialf.  J.  O'Hara."  A  similar  writ- 
ins  fixed  the  compensation  of  Mackoy  at  $G,- 
000.  A  copy  of  each  writing  was  handed  to 
the  citj'  of  Covington  or  its  representative, 
and  to  Simrall  and  jMackoy.  The  city  re- 
fused to  pay  the  fees,  and,  these  actions  hav- 
ing been  instituted  upon  the  state  of  facts 
presented,  a  general  demurrer  was  sustained 
to  the  petition  of  each  of  the  appellants,  and 
the  actions  dismissed. 

/  It  seems  to  us  the  only  question  in  this 
case  arising  on  the  demurrer  is  as  to  the 
power  of  the  trustees  to  enter  into  the  con- 
tract for  the  services  of  these  attorneys.  If 
the  right  to  employ  counsel  exists,  then  the 
contract  entered  into  is  binding,  and  should 
be  enforced./  The  legislature  saw  proper  to 
confide  to  this  board  of  trustees  the  duty  of 
having  the  waterworks  constructed,  and 
made  them  in  effect  the  agents  of  the  city 
of  Covington  for  that  purpose,  and  clothed 
them  with  all  the  powers  necessaiy  to  dis- 
charge the  duties  imposed  on  them.  They 
had  the  power  to  contra  :  and  be  contracted 
with,  to  sue  and  be  sued,  to  select  their 
agents  and  employes,  and  in  fact  were  in- 
vested with  all  powers  the  city  would  have 
had  if  the  board  of  council  had  been  select- 
ed instead  of  this  board  of  trustees.  It  was 
an  agent  invested  with  all  the  powers  of  a 
principal  in  so  far  as  the  improvement  was 
concerned.  Having  the  power  to  sue,  and 
the  right  of  others  to  sue  them  as  trustees 
when  acting  within  the  scope  of  their  au- 
thority, it  necessarily  follows  that  they  had 
the  right  to  employ  counsel  to  bring  the  ac- 
tion, or,  if  sued,  to  employ  counsel  to  make 
their  defense,  and  to  make  such  contracts  with 
reference  to  the  employments  as  they  could 
have  made  if  contracting  for  their  own  bene- 
fit. The  mode  of  contracting  for  the  serv- 
ices of  counsel  is  not  provided  for  by  the 
charter;  and  in  this  case,  as  the  character 
of  the  services  or  their  extent  could  not  well 
be  ascertained  at  the  time  the  appellants 
were  retained  as  counsel,  we  perceive  no 
reason  why  an  agreement  to  pay  such  a  sum 
as  one  of  their  own  board  should  deem  rea- 
sonable and  just  should  not  be  upheld.  The 
nature  of  the  contract  w^as  reported  to  the 
board,  and  by  that  body  was  ratified  and 
approved,  and  the  services  rendered.     There 

^  is  no  defense  or  bad  faith  alleged  in  any 
pleading,  but  an  admission  by  the  demurrer 

I  that  the  contract  was  made  and  the  services 

'  performed.  It  was,  however,  insisted  by 
counsel  for  the  city  in  the  oral  argument 

I  that  the  authority  given  one  member  of  the 
board  to  determine  these  fees  was  a  delega- 
tion of  a  power  that  could  be  exercised  by 
the  board  alone,  and,  unless  the  fees  were 


fixed  by  a  majority  of  that  body,  the  agree- 
ment to  that  extent  is  void.     It  was,  as  we 
see  from  the  records  before  us,  the  action  of 
the  entire  board   (save   one)   by  which   the 
parties  to  the  contract  were  to  be  bound  by 
the   sum    fixed    as    compensation    by    Judge 
O'llara.     It   was    not   one   member   of   the  j 
board  agreeing  to  the  contract,  but  a  decid-  j 
ed  majority  approving  and  directing  its  ex-  ' 
ecution;   and,  having  entered  into  the  agree- 
ment, they  cannot  now  claim  the  right  of    i 
determining  for  themselves  as  a  board,  or  I 
the  city   council   for  them,   whether   or  not 
the  sum  fixed  by  the  umpire  is  or  not  rea- 
sonable.    The  trustees  had  the  discretion  to    ■' 
settle  questions  of  dispute   in  reference   to  / 
the   subject-matter   under   their  control,   by  / 
agreeing  that  the  judgment  of  a  third  party 
should  determine  the  controversy;    and,  in- 
stead of  being  a  delegation  of  the  power  con-   I 
ferred  on  them  in  this  case,  it  was  an  exer-  I 
cise  of  the  authority  given  them  to  elect  one 
of  their  board  to  adjust  and  determine  the  I 
claims   of   these  appellants.     This   contract 
was  made  before  their  agency  terminated, 
and  during  the  progress  of  the  work,   and 
in  the  exercise  of  a  discretion  that  certainly 
belonged  to  them.     The  fact  that  one  of  the  I 
board   was  selected   as  the  arbiter,   or  the  | 
person  to  determine  the  compensation,  can  I 
make    no    difference.     The    right   to    do    so 
originated   from   the   contract  between   the  j 
trustees  (O'Hara  being  one),  on  the  one  side,   ' 
and  these  appellants,  on  the  other;    and  al- 
though the  trustees  had  turned  the  water- 
works over  to  the  city,  and  ended  their  con-    I 
uection  with  them,  before  the  services  of  the    I 
attorneys  had  ended,  and  before  O'Hara  de-   | 
termined  what  the  fees  should  be,— and  this 
he  could  not  do  until  the  litigation  was  over, 
—still  this  did  not  affect  the  contract;    nor 
can  these  parties,  in  their  corporate  capacity, 
be  regarded  as  legally  dead  until  their  con- 
tracts are  complied  with.     Such  a  satisfac- 
tion of  a  legal  or  equitable  demand  is  un- 
known to  the  law.     They  might,   and  per- 
haps should,  have  been  made  parties  to  this 
litigation;    but  there  was  no  special  demur- 
rer, and  as  the  liability,  if  any,  is  to  be  dis- 
charged by  the  city,  it  is,  at  best,  a  formal 
objection,   as  both   sides   concede   that   the 
work  is  done,  and  the  means  of  the  agent 
passed  over  to  the  principal. 

Counsel  for  the  appellants  refer  to  two 
cases  conducing  to  remove  the  principal  ob- 
jection urged  by  counsel  to  the  petitions. 
The  mayor,  aldermen,  and  burgesses  of  Liv- 
erpool, in  behalf  of  the  city,  entered  into  an 
agreement  with  one  Scott,  that  provided, 
among  other  stipulations,  "that  disputes  be- 
tween the  parties  should  be  referred  to  the 
engineer  of  the  corporation  of  Liverpool,  and 
his  decision  should  be  binding."  3  De  Gex 
&  J.  334.  Also,  in  the  case  of  Hartupee  v. 
City  of  Pittsburgh,  97  Pa.  St.  107,  where  the 
council  of  that  city  made  a  contract  contain- 
ing a  similar  provision,  and  in  neither  case 
was  the  objection  rai.<;ed  that  such  contracts 


120 


THE  POWER  TO  INCUR  INDEBTEDNESS. 


were  nullities.  Numerous  cases  might  be 
cited  to  tlie  same  effect,  and  are  of  con- 
stant occurrence;  and  it  may  be  said  that, 
where  the  power  to  contract  exists,  the 
price  to  be  paid,  the  mode  and  kind  of  pay- 
ment, may  be  determined  by  a  third  party, 
if  such  is  the  agreement,  and  not  beyond 
the  scope  of  the  authority  given,  if  the  con- 
tract is  made  by  an  agent,  or  one  clothed 


with  similar  authority,  as  the  trustees  were 
in  this  case.  In  our  opinion,  the  demurrer 
should  have  been  overruled.  Reversed  and 
remanded  for  that  purpose,  and  for  proceed- 
ings consistent  with  this  opinion.  Sweeney 
V.  U.  S.,  109  U.  S.  618,  3  Sup.  Ct.  34-4;  Rail- 
road Co.  V.  Northcott,  15  111.  49;  Railway  v. 
Cummins,  6  Ky.  Law  Rep.  4r43;  Railroad  Co. 
V.  Price,  138  U.  S.  185,  11  Sup.  Ct  290. 


"INDEBTEDNESS"  DEFINED. 


12] 


KELLY  ot  al.  v.   CITY  OF  MIXNEArOLIS. 

(Go  N.  W.  115.  G3  Miun.  125.) 
Supreme   Court   of   Minnesota.     Dec.    9,   1895. 

Appeal  from  district  court,  Hennepin  coun- 
ty; Seagi-ave  Smith,  Cliarlcs  M.  Fond,  Hub- 
ert D.  Ilussell,  Robert  Jamison,  Hem-y  C.  Bel- 
don,  Juilses. 

Action  by  Anthony  Kelly  and  others  against 
the  city  of  Minneapolis.  From  an  order  de- 
nying a  motion  for  a  temporaiy  injimction, 
plaintiffs  appeal.     Reversed. 

J.  B.  Atwater  and  P.  M.  Babcock,  for  appel- 
lants.    David  F.  Simpson,  for  resixjndent. 

START,  C.  J.  This  action  was  bx-ought 
to  liave  a  certain  issue  of  the  bonds  of  the 
city  of  Minneapohs,  of  the  par  value  of 
$JO0,(X)0,  luiown  as  "Reservoir  Bonds,"  ad- 
judged void,  and  to  resti'ain  the  treasm-er 
of  tlie '  city  from  paying,  out  of  the  sinliing 
fund  of  the  city,  any  money  for  the  pm-- 
cliaso  of  such  bonds  for  the  sinliing  fund, 
pursuant  to  an  agreement  to  that  effect  be- 
.,  tween  the  city  council  and  the  board  of 
sinliing  fund  commissioners.  The  plaintiffs 
are  taxpayers  of  tlie  city,  and  from  an  order 
of  the  trial  court  denying  their  motion  for 
a  temporary  injunction  so  restraining  the 
treasurer  this  appeal  was  talien.  The  bonds 
were  issued  under  the  provisions  of  chapter 
204,  Laws  1S93,  which  forbids  any  city  in 
this  state  to  issue  bonds  or  to  incur  any 
debt  or  liability  of  any  liiud  for  any  pur- 
pose except  for  the  purchase,  refunding,  or 
paj'ment  of  outstanding  bonds,  in  excess  of 
5  per  cent,  of  the  assessed  valuation  of  the 
taxable  property  of  such  city  according  to 
the  last  preceding  assessment.  The  plain- 
tiffs claim  that  this  5  per  cent,  debt  limit 
has  already  been  exceeded  by  the  city,  exclu- 
sive of  tliese  reservoir  bonds;  and,  further, 
that  the  board  of  siuliing  fund  commission- 
ers have  no  authority  to  purchase  from  the 
city  its  bonds  at  the  time  they  are  offered 
for  sale  by  it. 
f  1.  The  first  question  is,  had  the  city.  If  the 
amount  of  tlie  reservoir  bonds  be  added  to 
its  debt,  exceeded  its  debt  limit  at  the 
time  of  the  proposed  sale  of  the  bonds  and 
the  commencement  of  this  action?  In  de- 
ciding this  (juestion  the  claim  of  the  plain- 
tiffs tliat  the  sum  of  ?20G,5G7— an  alleged 
indel)tedness  of  the  city  to  the  courthouse 
and  city  liall  commission— should  be  added  to 
the  indel)t(>dness  of  the  city,  must  be  reject- 
ed, for  it  does  not  affirmatively  appear  from 
the  record  tl>at,  if  there  ever-Avas  any  such 
Indebtedness,  it  existed  at  tlie  time  stated  in 
the  question.  Eliminating  tliis  claim,  it  is  suf- 
ficient to  say,  without  going  into  mathemat- 
ical details,  tliat  it  appenre  from  the  admit- 
ted facts  tliat,  if  the  amount  of  certain  park 
board  certilicates  hereinafter  to  be  noticed  is 
not  a  part  of  the  indeljtcdness  of  the  city, 
and  if  tlie  amount  of  tlie  money  and  bonds 
in  the  sinking  fund  of  the  city  is  to  be  de- 


ducted  from   the   total   amount   of   the   out- 
standing bonds  of  the  city,  the  entire  debt  of 
the  city,  including  tliese  reseiToii-  bonds,  will 
not  exceed  its  debt  limit.     The  answer,  then,  ' 
to  this  first  question  involves  a  consideration  ' 
of  two   subordinate  ones:    (a)  Are  the  park  | 
board  certijicates  an  indebtedness  of  the  city,  / 
within  tlie  meaning  of  the  statute  imposing' 
the    debt    limit?      (b)  Is   the    amount    of    the 
money  and  bonds  in  the  sinking  fund  to  be  de- 
ducted from  tlie  total  amount  of  the  city's  out- 
standing and  uncanceled  bonds,  for  the  purixise 
of  determining  its  actual  indebtedness?     We  i 
are  of  the  opinion  tliat  this  first  question  must  1 
be  answered  no,  and  the  second  one  yes,  and  j 
we  therefore  answer  the  original  question  ; 
in  the  negative. 

2.  Tlie  paj-k  board  certijicates  to  which  we(^) 
have  refeiTed  were  issued  under  the  provisions 
of  chapter  30,  Sp.  Laws  1SS9,  as  amended, 
which  provide  for  a  board  of  park  commission- 
ers, and  constitute  such  board  a  department  of 
the  government  of  the  city  of  Minneapolis.  This 
board  is  authorized  to  designate  and  acquire 
land  in  and  adjacent  to  the  city  for  public 
parlvs,  and  its  here  material  powers  are  as 
follows:  "The  said  board  of  commissioners, 
and  their  successors,  shall  have  power,  and 
it  is  hereby  authorized,  to  obtain  title  for 
and  in  the  name  of  the  city  of  Minneapolis, 
to  any  lands  so  designated  by  it  for  the 
purpose  of  this  act,  by  gift,  devise,  purchase 
or  lease.  And  said  board  may  enter  into 
any  contract  in  the  name  of  said  city,  for 
the  purchase  of  any  lands  to  be  paid  for  in 
such  time,  or  times,  and  in  such  manner  as 
tlie  board  may  agree  to;  and  said  board 
may  accept  title  to  lands  and  give  back  a 
mortgage  or  mortgages  in  the  name  of  said 
city,  with  or  without  bonds  to  secure  the 
unpaid  purcliase  price,  provided,  that  no  per- 
sonal or  general  liability  on  the  part  of  said 
city  shall  be  created  by  any  such  contract, 
or  mortgage,  or  bond  beyond  the  means  at 
the  time  available  therefor,  except  the  liabil- 
ity to  pay  such  amounts  as  may  be  realized 
from  benefits  assessed  on  benefited  proper- 
ty on  account  of  the  lands  included  in  such 
contract  or  mortgage.  And  it  is  hereby 
made  the  duty  of  said  board  to  pay  on  each 
such  contract  or  mortgage,  an  amount  equal 
to  the  sum  or  sums  so  realized  from  such 
assessments;  and  said  board  shall  have 
power  to  accept  and  receive  donations  of 
money,  property  or  lands,  for  the  use  of  the 
said  city  for  tlie  purposes  contemplated  in 
this  act."  Sp.  Laws  1889,  c.  30,  §  2,  as 
amended  by  Id.  c.  103,  §  1.  The  certificates 
in  question  were  given  for  the  purchase 
price  of  land  for  park  purposes,  and  their 
payment  secured  by  a  mortgage  on  the  laud 
purcliased.  Each  certificate  states  that  the 
city  of  Minneapolis  is  indebted  to  the  payee 
in  the  sum  therein  named,  and  recites  tliat 
the  consideration  therefor  is  the  convey- 
ance to  tlie  city  by  the  payee  of  land  for 
jiark  purposes,  and  that  tlie  certificate  is  se- 
cured by  a  mortgage  on  the  land  sold,  and 


122 


THE  POWER  TO  INCUR  INDEBTEDNESS. 


that  it  is  payable  out  of  the  funds  arising 
from  assessments  made  upon  real  estate  spe- 
cially benefited  by  the  park  established  on 
the  land,  and  concludes  with  these  words: 
"It  being  expressly  understood  and  agreed 
that  there  is  no  liability  on  the  part  of  said 
city  to  pay  the  amount  evidenced  by  this 
certificate,   secured   by   the  above-described 
mortgage,  out  of  any  other  fund  than  the 
fund  above  specified."     No  certificates  issued 
or  contracts  made  by  the  park  board  can  be 
given  any  legal  effect  contrary  to  or  in  ex- 
cess of  the  powers  conferred  upon  the  board 
by  the  statute  we  have  quoted,  and  they  are, 
in  fact,  substantially  in  accordance  with  its- 
provisions.     The    board    has    no    power    to 
make  these  certificates  a  hen  generally  upon 
all  the   parks   of  the  city,   and   the  record 
shows  that  no  attempt  has  been  made  to  se- 
cure their  payment  by  the  creation  of  such 
a  lien.     The  provisions  of  the  statute  relied 
upon  by  plaintiffs  to  support  their  proposi- 
tion to   the   contrary   (section   5,   c.   30.    Sp. 
Laws  18S9)  refer  only  to  park  bonds  issued 
for   the   purpose   of   obtaining   money   with 
which   to   acquire  land   for   park   purposes. 
It  is  admitted  that  such  bonds  are  a  part  of 
the  indebtedness  of  the   city.     Neither  are 
these  certificates  secured  by  a  mortgage  on 
any  portion  of  the  property  of  the  city  pre- 
viously owned  by  it,  nor  by  a  pledge  of  its 
revenues,    as    claimed   by   the   plaintiffs.     If 
such    was   the   case,    then   their   contention 
that  the  certificates  are  a  part  of  the  indebt- 
edness of  the  city  would  be  correct,  for  the 
statute  providing  a  debt  limit  for  cities  can- 
not be  evaded  by  the  makeshift  of  issuing  the 
bonds  or  other  obligations  of  the  city,  and 
make  them  payable  only  from  the  general 
revenues  of  the  city  to  be  derived  from  a 
particular  source,  or  by  securing  them  upon 
its  public  buildings  or  other  property,  Avhich, 
if  sold  to  pay  the  obligations,  must  be  re- 
placed  by   taxation,  to   enable  the   city   to 
discharge  its  governmental  functions.     The 
authorities  cited  by  counsel  for  the  plaintiffs 
fully  support  this  proposition.     But  such  is 
not  the  case  we  are  considering,  for  each  cer- 
tificate is  a  lien  merely  upon  the  particular 
land  for  the  agreed  purchase  price  of  whicft 
It  was  given,  not  upon  any  property  which 
the  city  previously  owned.     The  deed,  cer- 
tificate, and  mortgage  are  all  one  transac- 
tion,  and  after  the  mortgage  is  given   the 
city  has  just  as  much  interest  in  the  land 
mortgaged  as  it  had  before.     When  the  laud 
is  paid  for,   it  will  be  the  property  of  the 
city.     If  not,  the  certificate  holder  takes  it 
on  his   mortgage.     The  debt  of  the  city  is 
neither  increas-ed  nor  diminished  by  the  trans- 
action.    No  revenues  of  the  city  which  must 
be  laised  or  replaced  by  taxation  are  pledg- 
ed for  the  payment  of  the  certificates.     The 
statute    expressly    provides    that    the    park 
board  cannot  create  any  personal  or  geneml 
liability  on  the  part  of  the  city  by  any  cer- 
tificates they  may  issue,  except  to  pay  such 
amounts   as   may   be   realized  from   assess- 


ments on  property  benefited  on  account  of 
the  acquisition  of  the  land  purchased  for 
park  purposes.  In  no  event,  nor  under  any 
circumstances,  is  the  city  liable,  except  as  a 
trustee,  to  pay  over  to  the  certificate  holder 
the  amount  actually  realized  from  the  as- 
sessments. The  debt  limit  is  measured  by 
the  assessed  valuation  of  the  taxable  prop- 
erty of  the  city.  How,  then,  can  it  be  said 
that  these  certificates,  for  the  payment  of 
which  the  city  is  not  liable,  and  for  which 
no  tax  can  be  levied,  are  an  indebtedness  of 
the  city,  within  the  meaning  of  the  statute 
fixing  the  debt  limit? 

3.  Is  the  amount  of  the  bonds  and  cash  in 
the  sinking  fund  of  the  city  to  be  deducted 
from   the   total   amount   of   its   outstanding 
bonds  for  the  purpose  of  determining  wheth- 
er or  not  it  has  exceeded  its  debt  limit?    The 
view  which  we  take  of  the  purpose  and  na- 
ture of  this  sinking  fund  renders  unneces-  i^.^j 
sary  a  decision  of  the  question  raised  and 
discussed   by  counsel  as  to  the   repeal,   by 
chapter  204,  Laws  1893,  of  the  provisions  of 
the  charter  of  the  city  authorizing  such   de- 
duction to  be  made.     If  this  statute  does  not 
prohibit  such  deduction,  we  are  of  the  opin- 
ion that  it  must  be  made.     It  is  claimed  by 
plaintiffs  that  the  proviso  of  section  2,  c.  204, 
Laws  1893,  under  the  rule,  "Expressio  unius 
est  exclusio  alterius,"  forbids  the  deduction 
of   the  amount   of  the   sinking    fund.    Thi^ 
maxim  is  not  of  universal  application  in  the 
construction  of  statutes,  but  whether  or  not 
it  applies  in  a  given  case  depends  upon  the 
intention  of  the  legislature  as  indicated  up- 
on the  face  of  the  statute.    Broom,  Leg.  Max. 
G63;    Suth.  St.  Const.  §  329.     The  proviso  in 
question  is  in  these  words:    "Provided  that 
when  bonds  are  issued  for  the  purchase,  re- 
funding, or  payment  of  other  bonds  of  such- 
city,  the  bonds  to  be  so  purchased  or  paid 
shall  not  be  considered  a  part  of  the  bonds 
on  which  any  city  may  be  liable  for  the  pur- 
pose of  determining  whether  the  bonds  so  is- 
sued will  increase  the  bonded  indebtedness  of 
any  city  above  the  limit  prescribed  in  this  act." 
The  purpose  of  this  proviso  is  obvious  upon 
its  face.     It  was  intended  to  set  at  rest  any 
possible  question  which  might  be  raised  by 
would-be  purchasers  of  bonds  issued  for  the 
purpose  of  purchasing,  paying  or  refunding 
previous  bonds  of  the  city,  as  to  their  valid- 
ity, which  would  impair  their  market  value, 
and  embarrass  their  negotiation.     When  this 
proviso  is  read  in  connection  with  the  other 
provisions  of  the  chapter  of  which  it  is  a 
part,    especially    the    first    section    thereof, 
which  declares  that  the  rights  and  powers 
previously  granted  to  the  cities  of  the  state 
shall  not  be  abridged  or  affected  by  the  act, 
it  is  manirest  that  the  proviso  was  not  in- 
tended either  to  prohibit  or  to  authorize  the 
taking  into  account  the  sinking  fund  of  a 
city  in  determining  its  actual  indebtedness. 
We  are  then,   to  inquire  as  to  the  essential 
character  of   this   sinking   fund,   and   deter- 
mine therefrom,  according  to  general  prin- 


"INDEBTEDNESS"  DEFINED. 


123 


ciples  of  law  and  the  sugsostions  of  com- 
niou  sense,  whether  or  not  the  amount  there- 
of should  be  deducted  from  the  total  amount 
of  the  outstanding  funds  of  the  city  in  order 
to  ascertain  its  actual  indebtedness.  Sec- 
tion 13,  c.  5,  Charter  of  Minneapolis,  requires 
the  city  council  to  make  an  annual  levy  of 
taxes  suttic'ieut  to  pay  interest  to  become  due 
during  tlie  next  fiscal  year  on  all  bonds  and 
debts  of  the  city,  and  also  to  levy  a  fur- 
ther tax  of  one  mill  to  pay  the  principal  of 
the  bonds  when  they  become  due,  and  for- 
bids the  application  of  the  fund  created  by 
such  tax  to  any  other  purpose.  Section  14, 
Id.,  declares  that,  in  order  to  provide  for  the 
certain  payment  of  the  bonds  and  debts  of 
the  city,  the  council  are  authorized  to  main- 
tain this  sinking  fund,  and  provide  for  its 
investment  and  security,  but  have  no  author- 
ity to  abolish  it  until  all  the  debts  of  the 
city  are  paid,  nor  to  diveit  it  or  any  increase 
thereof  to  any  other  purpose,  and  are  requir- 
ed to  appoint  a  board  of  sinking  fund  com- 
missioners to  take  charge  of  the  fund.  This 
board,  with  the  consent  of  the  council,  may 
invest  the  fund  in  the  bonds  of  the  city  or 
in  certain  other  designated  bonds.  If  it  is 
invested  in  the  bonds  of  the  city,  they  are 
not  to  be  canceled,  but  the  interest  thereon 
is  to  be  collected,  and  added  to  the  fund; 
and  when  the  principal  of  any  city  bonds  be- 
comes due,  such  of  the  bonds  in  the  sinking 
fund  as  may  be  necessary  are  to  be  sold, 
with  the  consent  of  the  council,  and  the  ma- 
tured bonds  paid.  In  case  the  board  or 
council  neglect  or  violate  any  of  these  provi- 
sions, any  taxpayer  or  bondholder  is  given 
the  riglit  to  enforce  compliance  therewith  by 
suit.  The  substantial  maintenance  of  this 
fund,  in  accordance  with  these  provisions,  to 
secure  payment  of  the  principal  and  interest 
of  the  bonds  and  debts  of  the  city,  is  declar- 
ed to  be  a  part  of  the  contract  with  the  bond- 
holders. Section  22,  Id.,  declares,  in  effect, 
that  no  warrant  or  further  appropriation  on 
the  part  of  the  city  council  is  required  for 
the  application  of  the  money  in  the  sinking 
fund  to  the  payment  of  the  bonds.  It  is 
clear  from  these  provisions  that  the  money 
in  the  sinlving  fund  which  has  already  been 
raised  by  taxation  is  irrevocably  appropri- 
ated to  the  payment  of  the  outstanding 
bonds  and  debts  of  the  city.  If  any  part  of 
the  fund  is  invested  in  city  bonds,  they  can 
never  be  disposed  of,  except  to  extinguish 
by  payment  prior  maturing  city  bonds. 
When  any  bonds  held  by  the  sinking  fund 
become  due,  they  are  at  once  a  charge 
against  the  fund,  and  they  are  extinguished 
by  crediting  the  amount  thereof  to  the  fund. 
It  is  true,  as  counsel  for  plaintiffs  claim, 
that  there  is  no  express  provision  in  the 
charter  providing  that  city  bonds  in  the  sink- 
ing fund,  when  they  mature,  shall  be  so  ex- 
tinguished; but  such  bonds  can  only  be  sold 
to  pay  other  bonds  as  they  become  due,  and 
the  provision  of  the  charter  authorizing  such 
sale  surely  cannot  mean  that  city  bonds  in 


the  sinking  fund  already  due  are  to  be  sold 
to  pay  other  bonds  also  due,  or  that  city 
bonds  purchased  for  the  fund  are  to  remain 
uncanceled  indefinitely  after  their  maturity, 
and  a  tax  equal  to  the  interest  thereon  levied 
annually,  and  paid  into  the  fund.  The  fair 
inference  from  the  law  relating  to  this  sink- 
ing fund  is  that,  when  bonds  become  due, 
they  are  to  be  paid  and  canceled,  whether 
held  by  the  sinking  fund  or  other  parties. 
It  appears  from  the  record  in  this  case  that 
all  of  the  bonds  held  by  the  sinldng  fund  are 
the  bonds  of  the  city,  hence  the  amount  of 
the  bonds  and  the  money  in  the  fund  neces- 
sarily represent  an  equal  amount  of  the  out- 
standing and  uncanceled  bonds  and  indebt- 
edness of  the  city,  which  has  already  been 
realized  from  taxation  to  pay  the  bonds; 
and  to  ascertain  the  further  amount  to  be 
raised  by  taxation  in  order  to  extinguish  the 
entire  indebtedness  of  the  city  it  necessarily 
follows  that  the  amount  of  the  sinking  fund 
is  to  be  deducted  from  the  entire  amount  of 
the  apparent  indebtedness  of  the  city.  The 
balance  is  its  actual  debt.  The  debt  limit 
of  the  statute  has  reference  to  an  actual  in- 
debtedness for  the  payment  of  which  a  tax 
must  be  levied,  not  to  an  uncanceled  appar- 
ent liability.  Bank  v.  Grace,  102  N.  Y.  313, 
7  N.  E.  164.  As  we  have  suggested,  this 
debt  limit  of  the  statute  is  measured  by  the 
rate  per  cent,  of  taxation  necessary  to  pay 
the  entire  debt  of  the  city.  This  is  the  test 
Now,  it  is  apparent  from  the  admitted  facts 
in  this  case,  that  a  5  per  centum  tax  on  the 
assessed  valuation  of  the  city  would  produce 
a  sum  which,  if  added  to  the  amount  of  the 
sinking  fund,  would  exceed  the  amount  of 
all  of  its  bonds  and  debts,  including  these 
reservoir  bonds.  It  follows,  then,  that  the 
amount  of  the  sinking  fund  must  be  deduct- 
ed from  the  total  apparent  debt  of  the  city 
to  ascertain  whether  its  actual  debt  exceeds 
the  debt  limit. 

4.  Can  the  board  of  sinking  fund  commis- 
sioners purchase  from  the  city  its  bonds  at 
the  time  they  are  offered  for  sale?  We  an- 
swer this  question  in  the  negative.  We 
agree  with  the  city  attorney  that  there  is  no 
statute  forbidding  in  express  words  sucb 
purchase,  but  we  are  of  the  opinion  that  such 
a  purchase  is  so  radically  inconsistent  with 
the  essential  character  of  the  sinking  fund, 
and  so  destructive  of  the  purposes  to  be  con- 
served by  its  maintenance,  that  it  must  be 
hold  that  the  prohibition  is  necessarily  im- 
plied. The  city  can  only  issue  and  sell  its 
bonds  by  the  action  of  its  council,  and  the 
board  of  sinking  fund  commissioners  can 
only  buy  its  bonds  by  the  action  and  consent 
of  the  council.  The  intention  of  the  statute 
is  that  the  council  and  the  board  shall  be  a 
check  upon  each  other  in  the  purchase  of 
bonds  with  money  in  the  sinking  fund.  The 
unbiased  judgment  and  independent  action 
of  each  body  are  essential  to  the  safe  guard- 
ing of  a  fund  which  is  intended  to  secure  the 
certain  payment  of  the  existing  bonds  and 


124 


IHE  POWER  TO  INCUR  INDEBTEDNESS. 


debts  of  tlie  city,  and  which  the  council  are 
forbidden  to  divert  to  any  other  purpose. 
The  council  cannot  act  for  the  city  in  sell- 
ing its  bonds,  and  at  the  same  time  consent 
that  the  trustees  of  the  bondholders  and 
creditors  of  the  city,  the  board,  may  invest 
the  trust  fund  in  the  bonds  which  the  coun- 
cil desire  to  sell,  because  in  such  a  case 
there  can  be  no  exercise  of  an  unbiased  and 
independent  judgment  by  the  council  as  to 
the  propriety  of  such  purchase  by  the  board. 
To  construe  the  law  so  as  to  authorize  such 
a  sale  would  make  the  sinking  fund  a  debt- 
creating  instead  of  a  debt-paying  scheme. 
Section  4,  c.  204,  Laws  1893,  provides  that 
the  bonds  to  be  issued  under  the  act  shall 
not  bear  interest  at  a  greater  rate  than  5 
per  cent,  per  annum,  and  that  they  shall  not 
be  sold  for  less  than  par  and  accrued  interest 
to  the  highest  bidder,  after  publication  of 
notice  of  the  sale  thereof.  This  implies  that, 
if  the  credit  of  a  municipality  or  the  money 
inai'ket  is  such  that  its  bonds  will  not  bring 
in  the  open  market  par  and  accrued  interest, 
they  shall  not  be  sold.  Now,  if  a  city  hav- 
ing a  sinking  fund  set  apart  for  the  payment 
of  its  outstanding  bonds  can  be  a  bidder  and 
purchaser  of  its  own  bonds  at  the  original 
sale  thereof,  using  the  sinking  fund  for  such 
purpose,  it  follows  that,  when  the  credit  of 
the  city  or  the  money  market  is  such  tliat  a  5 
per  cent,  bond  will  not  sell  in  the  market 
for  par  and  accrued  interest,  the  city  may 
sell  its  bonds  to  itself  by  the  action  of  its 
council  and  its  sinking  fund  boai'd,  in  viola- 
tion of  the  spirit,  if  not  the  letter,  of  the 
law.  Or,  in  other  words,  the  city  council, 
when  it  cannot  sell  bonds  of  the  city  in  the 
manner  required  by  law,  may  consent  that 
the  board  may  turn  over  to  the  city  the  mon- 


ey in  the  sinking  fund,  and  receive  in  lieu 
thereof  a  new  issue  of  city  bonds  that  can- 
not be  sold  in  the  market,  whereby  the  sink- 
ing fund  is  diverted,  to  the  prejudice  of 
bondholders  and  the  impairment  of  the  cred- 
it of  the  city.  One  of  the  primary  objects 
of  the  law  in  providing  for  and  jealously 
guarding  the  sinking  fund  is  to  maintain  the 
credit  of  the  city,  and  enable  it  to  borrow 
money,  when  necessary,  on  its  bonds,  at  a 
low  rate  of  interest,  and  thereby  lessen  the 
burden  of  the  taxpayers.  But  if  the  city, 
by  the  consent  of  its  council  and  the  action 
of  its  board  of  sinking  fund  commissioners, 
can  help  itself  to  the  money  in  the  fund 
when  its  bonds  are  unsalable,  and  substitute 
for  the  money  such  bonds,  the  object  of  the 
law  will  be  defeated,  and  the  sinking  fund 
become  the  means  of  facilitating  an  increase 
of  the  debt  of  the  city.  Time,  there  is  no 
claim  made  in  this  case  of  any  want  of  good 
faith  on  the  part  of  the  council  and  the 
board,  and  it  may  also  be  true  that  in  this 
particular  case  it  would  be  for  the  advan- 
tage of  the  sinking  fund  to  purchase  of  the 
city  its  bonds  direct,  before  they  have  been 
negotiated;  but  the  evils  which  might  result 
from  a  construction  of  the  statute  permitting 
this  to  be  done  are  serious.  The  purpose  of 
the  statute  is  to  guard  against  the  possibil- 
ity of  such  evils.  When  the  provision  of  the 
charter  relating  to  the  sinking  fund  and  the 
statute  regulating  the  sale  of  municipal 
bonds  are  considered  together,  it  is  obvious 
that  a  sale  by  the  city  of  its  bonds  to  itself 
for  its  sinking  fund  would  be  a  violation  of 
the  spirit,  if  not  the  letter,  of  the  law. 

OrdJr  reversed,  and  case  remanded  with 
direction  to  the  district  court  to  grant  the 
plaintiffs'  motion  for  a  temporary  injunction. 


i 


"INDEBTEDi^ESS"  DEFINED. 


125 


LEWIS  V.  WIDBER;  Treasurer.      (No,  15,452.) 

(33  Pac.  1128,  99  Cal.  412.) 

Supreme  Court  of  California.     Aug.  30,  1893. 

In  banii. 

Applioiition  by  George  E.  Lewis  for  a  •writ 
of  mand.ite  to  compel  J.  H.  Widhor,  treas- 
urer of  the  city  and  comity  of  San  Francisco, 
to  pay  an  audited  claim  of  applicant  for 
salary  as  chief  clerk  in  the  otiice  of  registrar 
of  voters.     Granted. 

S.  C.  Denson,  for  petitioner.  T.  C.  Van 
Ness,  for  resi-ondent. 

McPARLAND,  J.  This  is  an  original  ap- 
I  plication  here  for  a  writ  of  mandate  requir- 
ing the  res])ondent.  who  is  treasurer  of  the 
city  and  county  of  San  Francisco,  to  pay  an 
audited  claim  of  petitioner  for  his  salary 
I  as  chief  clei-k  in  the  othce  of  registrar  of 
'  voters  for  the  month  of  June,  1893.  The 
fili:ls  are  that  the  office  of  petitioner  was  es- 
tablished, and  his  salary  fixed  at  $1.50  per 
month,  by  a  statute  of  the  state  legislature; 
that  when  on  August  3,  1893,  he  made  de- 
mand on  the  respondent  for  the  payment  of 
his  claim  for  salary  for  the  month  of  June 
preceding,  there  was  plenty  of  money  in  the 
general  fund  of  said  city  and  coimty  to  pay 
the  same,  but  that  there  was  no  money  in  said 
fund  which  had  been  derived  from  the  rev- 
enues of  the  city  for  the  fiscal  year  ending 
June  30,  1893.  The  charter  of  said  city  and 
coimty,  commonly  called  the  "Consolidation 
Act,"  provides  that  the  fixed  salaries  of  offi- 
cers shall  be  paid  out  of  the  general  fund,  and 
that,  in  case  of  a  deficiency  in  the  fimd, 
di-mands  for  salaries  shall  be  registered  and 
paid  out  of  any  moneys  afterwards  coming 
into  the  fimd.  Sections  95,  9G.  It  nowhere 
limits  the  payment  of  such  salaries  to  the 
revenue  of  any  particular  year.  The  re- 
splendent contends— or,  rather,  he  suggests 
that  somebody  else  might  give  him  trouble 
by  contending— that  he  should  not  pay  peti- 
tioner's salary  on  accoimt  of  section  18  of 
aiticle  11  of  the  state  constitution,  which 
reads  as  follows:  "No  coimty,  city,  town, 
t(nvnship,  board  of  education,  or  school  dis- 
trict, shall  incur  any  indebtedness  or  liabil- 
ity in  any  manner,  or  for  any  purpose,  ex- 
ceeding in  any  year  the  income  and  revenue 
provided  for  it  for  such  year,  without  the 
assent  of  tAvo-tlm-ds  of  the  qualified  voters," 
etc.  It  is  quite  apparent,  however,  that  this 
clause  of  the  constitution  refers  only  to  au 
indebtedness  or  liability  which  one  of  the 
uumicipal  bodies  mentioned  has  itself  in- 
curred; that  is,  an  indebtedness  which  the 
nnuiicipality  has  contracted,  or  a  liability 
resulting,  in  whole  or  in  part,  from  some 
act  or  conduct  of  such  municipality.  Such 
is  the  plain  meaning  of  the  language 
used.  The  clear  intent  expi-essed  in  the 
said  clause  was  to  limit  and  restrict  the 
power  of  the  municipality  as  to  any  indel.it- 
ediiess   or   liability   which   it   has   discretion 


to  incur,  or  not  to  incur.     But  the  stated  sal-  j 
ary   of  a  pulilic  officer,  fixed  by  statute,  is  i 
a  matter  over  which  the  municipalitj'  has  no 
control,     and     with     respect     to     which     it  I 
has  no  discretion,   and   the  payment  of  his  ( 
salary  is  a  liability  established  by  the  leg-  ^ 
islature  at  the  date  of  the  creation  of  the  ' 
office.     It   therefore  is  not   an  indebtedness  1 
or  liability  incurred  by  the  nmnicipalitj',  with-  I 
in  the  meaning  of  said  clause  of  the  consti- 
tution.    Counsel    for    respondent    does    not  1 
very  strenuously  contend  that  the  foregoing 
consti'iiction   would   not   be   the   correct  one 
if  tlie  question  were  res  Integra;    but  he  con- 
tends that  this  court  has  decided  otherwise 
in  the  cases  of  Gas  Co.  v.  Brickwedel,  62  Cal, 
G41;    Shaw  v.    Statler,   74  Cal.   258,   15   Pac. 
Rep.  833;  and  Schwartz  v.  Wilson,  75  Cal.  502, 
17  Pac.  Rep.  449.     But  the  point  under  dis- 
cussion here  was  not  involved  in  either  of 
those  cases,  and  therefore  could  not  possi- 
bly have  been  there  decided.     In  neither  of 
those  cases  was  the  subject  of  the  litigation 
the  payment  of  the  fixed  salary  of  a  public 
officer  prescribed  by  law.     In  each  case  there 
was  involved  only  an  ordinary  debt  created 
by  the  municipality  itself, — an  indebtedness 
which  it  had  incurred;    and  we  agree  with 
•the  decision  of  the  com't  in  those  cases  that 
debts   and   liabUities   of  that  kind   must   be 
paid  out  of  the  revenue  of  the  year  in  which 
such  indebtedness  or  liability  was  inciured 
bj'  the  municipality.     In  the  Brickwedel  Case 
the  matter  involved  grew  out  of  a  contract 
made  by  the  city  about  the  purchase  of  gas; 
in  Shaw  v.   Statler,  out  of  the  hiring  of  a 
man    as    boss   of   the   chain   gang;    and,    in 
Schwartz   v.   AVilson,   out   of  a  sale  to   the 
county  of  certain  goods,  wares,  and  merchan- 
dise.    Those   cases   were  therefore  properly 
decided;    but,    of    coiuse,    general    language 
used  by  a  judge  when  delivering  the  opinion 
of  the  court  must  be  considered  with  refer- 
ence to  points  before  the  coiut,  and  the  mat- 
ters involved  in  the  case.     And  the  general 
language   used   by   Mr   Justice   Ross   in    the 
Brickwedel  Case,— upon  which  the  fears  of 
respondent  are  based, — even  if  taken  in  the 
abstract,  does  not  warrant  the  construction 
put  upon  it.     The  words,  "no  such  indebted- 
ness or  liability  should  be  inciured  exceed- 
ing," etc.,  means  incurred  by  the  municipal- 
ity;   and  in  speaking  of  the  object  of  the  pro- 
vision he  refers  to  a  system  previously  pre- 
vailing in   some   of   the    municipalities,    "by 
which   liability    and    indebtedness   were    in- 
cuned  by  them  far  in  excess,"  etc.     And  in 
speaking  of   the  result  of  the  enforcement 
of  the  constitutional  provision,  after  referring 
to    the    principle   that   all   are   presumed    to 
know  the  powers  of  a  municipality,  he  says 
that  "those  who  contract  with  it,  or  fiunish 
it   with   supplies,   do    so    with   reference    to 
the  law."    And,  of  course,  when  taken  with 
reference  to  the  point  then  before  the  court, 
there  is  nothing  in  the  opinion  which  con- 
flicts with  the  conclusion  at  which  we  have 
arrived  in  the  case  at  bar.     The  cases  cited 


126 


'I  HE  POWER  TO  INCUR  INDEBTEDNESS. 


by  respondent,  of  People  v.  May,  12  Pac. 
Rep.  83S,  decided  by  the  supreme  court  of 
Colorado,  and  Lake  Co.  v.  Rollins,  130  U. 
S.  662,  9  Sup.  Ct  Rep.  651,  are  not  in  point. 
Those  cases  dealt  with  a  constitutional  pro- 
vision very  different  from  the  one  invoked 
in  the  case  at  bar,— a  provision  which  lim- 
ited the  amount  of  "debt  by  loan"  which  a 
county  could  contract,  and  the  "aggregate 
amoimt  of  indebtedness"  which  it  could  in- 
cur. On  the  other  hand,  the  cases  of  Cash- 
in  v.  Dunn,  58  Cal.  5S1,  and  Welch  v.  Stroth- 
er,  74  Cal.  413,  16  Pac.  Rep.  22,  are  strongly 
in  point,  for  while  the  "one-twelfth  act,"  and 
not  the  said  constitutional  provision,  was 
involved  in  those  cases,  still  the  same  rule 
was  applied  there  which  we  apply  here.  In 
the  former  case  the  coiu-t  said  that  the  said 
act  "has  no  application  whatever  to  the 
auditing  and  payment  of  demands  for  sala- 
ries of  officers  whose  appointment  is  provid- 
ed for  and  salaries  fixed  by  law,"  and  in  the 
latter  case  this  com't  said  as  foUows:  "Sal- 
aries are  not  liabilities  against  the  treasm-y, 
which  rest  upon  any  authorization  or  con- 
tract by  the  board  of  supervisors,  or  any  oth- 


er officer.  They  are  fixed  by  law,  and  are 
not  subject  to  the  control  of  such  officers. 
They  are  payable  out  of  the  general  fund, 
and  are  not  limited  to  any  particular  part 
of  that  fund  which  the  board  may  choose 
to  set  apart  for  their  payment."  Our  con- 
clusion is  that  the  payment  of  the  salary 
of  a  public  officer,  whose  office  has  been  cre- 
ated and  salary  fixed  by  law,  either  statutory 
or  constitutional,  is  not  within  the  provision 
of  said  section  18  of  ai'ticle  11  of  the  consti- 
tution; tliat  his  salary  is  to  be  paid  out  of 
said  general  fimd  when  there  is  sufficient 
money  therein,  without  regard  to  revenues  of 
separate  years;  and  that  it  was  a  duty 
specially  enjoined  by  law  upon  respondent  to 
pay  the  said  audited  demand  of  petitioner 
when  it  was  presented,  on  said  3d  day  of 
July.  Let  a  peremptory  -writ  of  mandate 
issue,  as  prayed  for  in  the  petition. 

We     concur:      FITZGERALD,     J.;    GAR- 
OUTTE,  J.;  DE  HAVEN,  J.;  HARRISON,  J. 

BEATTY,  G.  J.,  did  not  participate  in  the 
decision  of  the  above  cause. 


WHAT  SHOULD  BE  INCLUDED  IN  TERM  "LJsDEBTEDNESS. 


127 


FINLAYSON  v.  VAUGHN,  County  Treasurer. 

(56  N.  W,  49,  5i  Minn.  331.) 
Supreme  Court  of  Minnesota.     July   31,    1S03. 

Appeal  from  district  court,  Ramsey  coim- 
ty;   Brill,  Judf:re. 

Action  by  David  M.  Finlayson  against 
.Tolm  D.  VaiiLrlin,  treasurer  of  Pine  county. 
Defendant  had  judgment,  and  plaintiff  ap- 
peals.    AfBrmed. 

C.  D.  &  Tlios.  D.  O'Brien,  for  appellant 
Robert  0.  Saunders,  for  respondent. 

VANDERBURGH,  J.      The    township    of 
Hinckley,   in    the   county   of    Pine,   in    the 
year  1S86  issued  certain  bonds  in  aid  of  the 
Kettle     River     Railroad     Company.     These 
bonds,   $12,000   in   amount,   were   issued   in 
pursuance   of   chapter    106,    Laws    IS 77,    as 
amended  in   1S78,   chapters  45,  46;    and   all 
the    proceedings    leading    to    the    issuance 
tliereof  are  found  by  the  court  to  have  been 
regular,  and  in  conformity  with  the  statute. 
/  It  is,  however,  insisted  by  the  plaintiff  that 
/  the  amoimt  issued,   together  with  the  cou- 
[    pons,  was  in  excess  of  5  per  cent,  of  the  as- 
^  sessed  valuation  of  the  property  of  the  town. 
.  Conceding  that  the  plaintiff  is  right  in  this, 
I  it  does  not  follow,  as  respondent  suggests, 
that  the  entire  indebtedness  is  void,  but  the 
/  invalidity  would  attach  only  to  the  excess 
'  over  the  stiitutory  hmit.    But  it  does  not  ap- 
/  pear   that   the   entii-e   indebtedness    exceeds 
I  such  limit.    The  amount  of  the  bonds  voted  is 
$12,000,  issued  October  1,  1SS6.    These  bonds 
bear  interest  at  the  rate  of  7  per  cent,  per 
annum,  and  I'un  30  years,  each  bond  having 
corresponding    interest     coupons     attached, 
payable  on  October  1st  each  year,  the  first 
being  due  and  payable  October  1,  1SS7.     It 
is  also  admitted  that  the  total  assessed  val- 
uation of  the  taxable  property  of  the  town 
I  for  that  year  was  $251,359.     If  the  princi- 
pal alone  is  considered,  it  is  obvious  that  the 
total  amount  of  the  bonds  was  within  the  5 
per  cent,  limit     Btit  the  plaintiff  claims  that 
.  the    interest    which,    by    the    terms    of   the 
'  bonds,  was  to  accrue  from  year  to  year  aft- 
er the  date  thereof,  must  be  included  in  the 
'    amount  allowed  to  be  issued  imder  the  stat- 
ute.    This  is  clearly  erroneotis,  as  the  cotui; 


below  held.  Tliese  interest  coupons  form 
no  part  of  the  principal  debt,  and  the  I 
bonds  when  issued  represented  at  that 
date  an  indebtedness  for  the  principal  sum 
only.  The  statute  contemplates  nothing 
more.  Durant  v.  Iowa  Co.,  Woolw.  71,  Fed. 
Cas.  No.  4,189. 

2.  The  proposition  for  the  issuance  of  the 
bonds  was  in  tlie  form  requirwl  by  the  stat- 
ute, and  contained  a  statement  that  "said 
railroad  company  would,  in  consideration  of 
said  bonds,  at  the  election  of  said  town,  is- 
sue to  said  town  one  hundred  and  twenty 
shares  of  its  capital  stoclj  of  the  par  value 
of  $100  per  share,  and  wotdd  deposit  the 
certificates  of  such  shares  to  be  delivered  to 
the  proper  authorities  of  said  town  upon  the 
deliveiy  of  said  bonds  to  said  company."  It 
is  also  foimd  that  the  board  of  supervisors 
of  the  town,  after  the  election  authorizing 
the  issuance  of  the  bonds,  deeming  it  for  the 
interest  of  said  town  to  do  so,  at  a  meeting 
duly  held  on  September  29,  1880,  waived 
the  issuance  by  said  railroad  company  of 
any  stock  to  said  town.  On  October  1,  1886, 
the  bonds  were  issued  and  deposited  in  es- 
crow to  be  delivered  to  the  railroad  com- 
pany, which  was  done  prior  to  January  1st 
following,  but  no  stock  was  issued  to  the 
town.  The  plaintiff's  contention  is  that  the 
town  super visoi-s  had  no  authority  to  waive 
the  issue  of  the  stock,  but  the  statute  is  a 
complete  answer  to  this  objection.  Section 
4  provides  that  the  proposition  to  be  voted 
on  shall  contain  a  statement  that  the  rail- 
road company  will,  at  the  election  of  such 
municipality,  issue  to  it  such  number  of  the 
shares  of  the  capital  stock  as  will  at  par 
value  correspond  with  the  principal  sum  of 
such  bonds;  and  the  last  proviso  in  sec- 
tion 5  authorizes  the  board  of  supervisors  of 
any  such  town,  in  case  they  shall  deem  it  best 
for  the  interest  of  such  town  to  do  so,  to 
waive  the  issuance  of  any  such  stock.  It 
is  evident  that  in  some  cases  the  stock 
woidd  not  be  of  sufficient  value  to  compen- 
sate for  the  risk  of  the  liability  of  stock- 
holders. In  any  event,  it  is  left  with  the 
supervisors  to  determine,  and  their  waiver 
in  this  instance  in  no  way  affects  the  valid- 
ity of  the  bonds.     Judgment  affirmed. 


128 


POWER  TO  CHARTER  PRIVATE  MONOPOLIES. 


RUTLAND  ELECTRIC  LIGHT  CO.  v.  MAR- 
BLE CITY  ELECTRIC  LIGHT  CO. 

(26  Atl.  635,  65  Yt.  377.) 

Supreme  Court  of  Vermont.  Rutland.  April 
22,  1S93. 

Appeal  from  chancery  court,  Rutland  coun- 
ty; Taft,  Chancellor. 

Bill  by  the  Rutland  Electric  Light  Com- 
pany against  the  Marble  City  Electric  Light 
Company  for  damages  and  an  injunction. 
The  bill  was  dismissed  pro  forma,  and  the 
orator  appeals.     Reversed. 

Geo.  E.  Lawrence  and  C.  H.  Joyce,  for  ora- 
tor.    J.  C.  Baker,  for  defendant. 

TYLER,  J.  The  orator  and  defendant  are 
rival  coi-porations,  organized  imder  the  gen- 
eral laws  of  this  state  for  the  purpose  of  car- 
rying on,  resi^ectively,  the  business  of  elec- 
tric lighting  in  the  village  of  Rutland.  In 
May,  1886,  the  orator  entered  into  a  written 
contract  with  the  trustees  of  the  village  for 
lighting  the  village  streets,  and,  acting  upon 
and  in  compliance  with  that  contract,  it  es- 
tablished a  plant,  erected  poles,  strung  wires, 
and  commenced  doing  business.  It  was  stip- 
ulated that,  where  wires  crossed  streets,  they 
should  not  be  within  30  feet  of  the  ground, 
•and  street  line  wires  should  be  at  least  20 
feet  above  the  ground.  The  poles  were  erect- 
ed at  points  indicated  by  the  trustees.  Some 
three  years  later  the  defendant,  by  permis- 
sion of  the  trustees,  erected  poles,  strung 
wires,  and  commenced  the  business  of  elec- 
tric lighting  in  competition  with  the  orator. 
Its  poles  were  also  placed  under  direction  of 
the  trustees.  In  some  of  the  principal  streets 
the  poles  were  set  on  the  same  side  as  the 
orator's  poles,  and  quite  near  to  them.  The 
orator  employs  a  system  for  lighting  buildings 
with  incandescent  lamps  with  a  current  of 
electricity  used  on  its  wires  of  only  110  volts, 
which  is  so  low  a  current  that  the  wires, 
when  charged,  can  be  handled  with  safety. 
The  defendant  uses  for  its  incandescent 
lamps  an  alternating  current  of  1,000  volts  on 
its  wires  on  the  streets.  By  means  of  what 
are  called  "converters,"  a  cvu-rent  of  50  volts 
is  taken  into  buildings.  When  the  defend- 
ant's wires  were  first  strung  upon  the  poles 
they  did  not  toiich  the  wires  and  poles  of  the 
orator,  but  from  the  effect  of  storms,  from 
stretching,  or  some  other  cause,  they  now 
sometimes  come  in  contact  with  the  orator's 
poles  and  wires,  and  injure  them.  The  wires 
should  not  be  nearer  each  other  than  12 
inches,  and  the  crosspieces  upon  which  they 
are  strung  should  be  at  least  2  feet  apart,  so 
that  when  the  wires  arc  loaded  with  snow 
and  ice,  or  when  swayed  by  the  wind,  they 
will  not  come  in  contact.  When  a  wire  car- 
rying a  heavy  current  comes  in  contact  with 
one  carrying  a  ligliter  current  the  heavy  cur- 
rent is  liable  to  be  inducted  into  the  other 
wire,  which  endangers  the  orator's  wires, 
lamps,  and  plnnt.  and  is  liable  to  set  fire  to 
buildings,  for  which  the  orator  would  be  an- 


swerable in  damages.  The  defendant's  poles 
are  not  as  high  as  those  of  the  orator.  The 
crosspieces  to  which  its  wires  are  attached 
are  nearer  the  ground  than  those  of  the  ora- 
tor, so  that  in  places  the  defendant's  wires 
are  under  the  orator's,  which  renders  it  dif- 
ficult and  dangerous  for  the  orator's  employes 
to  reach  their  wires  for  repairs  and  other 
pui-poses.  No  accident  has  thus  far  happen- 
ed. The  defendant's  wires  are  not  usually 
charged  with  electricity  in  the  daytime,  but 
the  two  plants  are  entirely  independent  of 
each  other,  and  the  orator's  employes  have  no 
means  of  knowing  when  the  defendant's 
"syres  are  charged.  Where  the  wires  of  the 
parties  cross  Centre  street  the  orator's  is  only 
21  feet  above  the  ground;  the  defendant's  is 
strung  above  it,  and,  having  sagged,  rests 
upon  it.  At  other  places,  where  the  respec- 
tive wires  enter  buildings,  they  interfere  with 
each  other.  These  are  the  material  facts 
found  by  the  master.  It  is  conceded  that  the 
village  trustees  had  authority  to  make  the 
contract  with  the  orator. 

The  defendant  virtually  concedes  that  the 
orator's  contract  M'ith  the  trustees  is  the 
measure  of  its  rights.  The  village,  by  its 
trustees,  invested  the  orator  with  certain 
rights,  and,  after  the  orator,  relying  upon  the 
contract,  had  expended  money  in  establish- 
ing its  plant  and  appliances,  the  village  could 
not,  by  an  ordinance,  have  infringed  these 
rights;  and  clearly  it  could  not  confer  upon 
the  defendant  authority  to  infringe  them.  On 
the  other  hand,  it  is  not  claimed  that  the  oi'a- 
tor  obtained  a  privilege  of  the  streets  to  the 
exclusion  of  the  defendant,  but  that  the  de- 
fendant's rights  were  subordinate  to  the  ora- 
tor's, and  must  be  exercised  in  such  a  man- 
ner as  not  to  interfere  with  them.  If  au- 
thorities were  required  to  sustain  so  plain  a 
pi'oposition,  those  cited  upon  the  orator's  brief 
are  pertinent.  In  Hudson  Tel.  Co.  v.  Jersey 
City,  49  N.  J.  Law,  303,  8  Atl.  123,  it  was 
held  that  where  the  city,  by  an  ordinance, 
under  statutory  authority,  had  designated 
certain  public  streets  in  which  the  company 
might  place  its  telegraph  poles,  and  the  com- 
pany had  expended  money  in  placing  its  poles 
upon  such  streets,  the  city  could  not,  by  sub- 
sequent ordinances,  revoke  such  designations; 
that  the  company  had  an  irrevocable  vested 
right  to  use  the  streets  for  the  designated 
purpose.  Thompson's  Law  of  Electricity 
lays  down  the  general  rule  that  when  a  mu- 
nicipal corporation,  under  a  statutory  provi- 
sion, has,  by  ordinance  or  other  lawful  mode, 
authorized  a  telephone  company  to  erect  its 
posts  or  poles  in  certain  designated  streets, 
and  the  company  proceeds  so  to  erect  them, 
and  to  expend  money  on  the  faith  of  the  li- 
ccmse  so  granted,  it  thereby  acquires  a  vested 
right  to  the  use  of  the  designated  streets,  so 
long  as  it  conforms  to  the  conditions  of  the 
license;  and  the  license  cannot  thereafter  be 
revoked  by  the  municipality.  So  an  ordi- 
nance authorizing  a  telephone  company  to 
maintain  lines  on  its  streets,  without  liniita- 


POWER  TO  CHARTE;R  PRIVATE  MONOPOLIES. 


129 


tion  as  to  time,  for  a  stipiilated  consiilora- 
tion,  when  accepted  and  acted  upon  by  the 
grantee,  by  a  compliance  with  its  conditions, 
becomes  a  contract,  which  the  city  cannot 
abolish  or  alter,  without  consent  of  the  jiran- 
tees.  It  appears  that  the  orator  has  suffered 
some  damage  in  co^isequence  of  its  wires 
coming  in  contact  with  the  defendant's;  that 
it  is  constantly  exposed  to  danger  from  such 
contact,  and  that  its  men  cannot  convenient- 
ly and  without  danger  reach  its  wires  for  the 
ABB.CORP— 9 


purpose  of  making  repairs  and  of  connecting 
lines  therewith  to  buildings.  We  therefore 
think  that  the  orator  is  entitled  to  reUef  ac- 
eoriling  to  the  prayer  of  the  bill.  The  pro 
forma  decree  dismissing  the  bill  is  reversed, 
and  the  cause  remanded.  An  accounting  is 
ordered  for  the  damages  already  suffered  by 
the  orator,  and  the  orator  may  have  a  per- 
petual injunction  restraining  the  defendant 
from  maintaining  its  wires  so  as  to  interfere 
with  those  of  the  orator. 


130 


POWER  TO  CHARTER  PRIVATE  MONOPOLIES. 


CITY  OF  BRENHA:M  v.  BRENHAM  WA- 
TER CO. 

(4  S.  W.  143,  67  Tex.  542.) 

Supreme  Court  of  Texas.     March  25,  1S87. 

Appeal    from    district   court,    Washington 

county. 
Tarver  &  Bryan  and  J.  T.  Swearingen,  for 

appellant.    Garrett,  Searcy  &  Bryan  and  Bas- 

sett,  Muse  &  Muse,  for  appellee. 

STAYTON,  J.    On  August  18,  1884,  the  city 
of  Brenham  passed  an  ordinance,  which  pro- 
vided that  an  association  of  persons,  then  un- 
incorporated,   linown    as    "Brenham    Water 
Company,"  should  have  the  right  to  establish, 
construct,   and  operate   a   system   of  water- 
•R'orks  in  or  adjacent  to  the  city,  and  for  this 
purpose  to  use  all  the  streets,  alleys,  lanes, 
public  grounds,  and  all  places  under  the  con- 
trol of  the  city,  so  far  as  might  be  necessary 
for  the  proper  conduct  of  the  business,  "and 
for  supplying  said  city,  and  the  inhabitants 
thereof,  with  fresh  water  for  domestic,  man- 
ufacturing, fire,   and  other  purposes."     The 
length  of  mains  and  pipes  to  be  first  estab- 
lished was  fixed  at  not  less  than  four  miles, 
to  be  located  as  might  be   agreed  between 
the  company  and  the  city,  which  were  re- 
quired to  be  extended  as  the  city  might  order 
to  be  done.     The  seventh  section  of  the  ordi- 
nance  determined    the   capacity   the   water- 
works were  reiuired  to  have,  and  the  eighth 
section  gave  the  city  the  right  to  use  water 
for  public  purposes  other  than  the  extinguish- 
ment of  fires  which  the  city  was  to  receive 
in  full  payment  for  all  municipal  taxes  dur- 
ing the  full  term  for  which  the  contract  was 
to  run.     The  ninth  section  reserved  to  the 
city  the  right  to  purchase  the  water-works 
after  the  expiration  of  10  years,  at  such  price 
as  might  be  agreed  upon  by  persons  to  be  se- 
lected as  therein  provided,   whose  appraise- 
ment was  to  be  binding  upon  both  parties. 
Section  1  was:     "That  there  is  hereby  given 
and   granted   to   Brenham    Water   Company 
the  right  and  privilege,  for  the  term  of  twen- 
ty-five years  from  the  date  of  the  adoption  of 
this  ordinance,  of  supplying  the  city  of  Bren- 
ham, and  the  inhabitants  thereof,  with  wa- 
ter for  domestic  or  other  uses,  and  for  the  ex- 
tinguishment of  fires."     The  fifth  section  is 
as  follows:     "The  said  city  of  Brenham  here- 
by agrees  to  rent,  and  does  rent,  of  the  said 
Brenham  Water  Company,  35  double-nozzle 
fire  hydrants,   located,   by  authority  of  said 
city,  upon  the  mains  and  pipes  within  said 
city,   for  the  extinguishment  of  fires,   at   a 
rental  of  .'?3.000  per  annum,  payable  quarter- 
ly on  the  first  day  of  .Tanuary,  April,  July, 
and  October  in  each  year.     The  said  rental 
shall  commence  when  the  city  is  notified  that 
the  said  hydrants  are  ready  for  use,  and  shall 
continue  during  the  full  term  specified  in  this 
ordinance;    and  for  the  purpose  of  providing 
for  the  payment  of  all  hydrant  rental  becom- 
ing due,  uuder  the  provisions  of  this  contract, 


the  city  council  shall  levy,  collect,  and  appro- 
priate annually  a  sufficient  sum  of  money  to 
cover  the  amount  becoming  due  on  this  con- 
tract." The  sixth  section  provided  that  "the 
said  Brenham  Water  Company  shall  make  all 
extensions  of  mains  and  pipes  whenever  the 
said  city  council  shall  oi'der  the  same  to  be 
made,  and  shall  erect  not  less  than  at  the 
rate  of  ten  double-nozzle  fire  hydrants  to  the 
mile  on  such  extensions,  for  which  hydrants 
the  said  city  of  Brenham  shall  pay  a  rental 
of  $60  each  per  annum,  payable  as  provided 
in  section  5."  The  thirteenth  section  fixed, 
the  water  rate  which  might  be  charged  to 
inhabitants  in  most  of  the  matters  and  busi- 
ness that  could  be  enumerated,  but  as  to  some 
enumerated,  and  those  not  enumerated,  the 
charge  was  left  to  be  fixed  by  contract  to  be 
made  with  the  superintendent,  and  all  rates 
were  made  payable  quarterly  in  advance  at 
the  office  of  the  corporation.  The  fourteenth 
section  provides  that  "this  ordinance  shall 
be  a  contract  by  and  between  the  city  of 
Brenham  and  the  Brenham  Water  Company, 
their  successors  and  assigns,  and  shall  be 
binding  on  both  parties  thereto,  provided  said 
company  shall  file  with  the  city  clerk  its  ac- 
ceptance of  the  same  in  writing  within  five 
daj;s  after  the  passage  of  the  same."  The 
water  company's  acceptance  was  filed  as  re- 
quired by  the  ordinance. 

Before  the  first  of  June,  1885,  the  persons 
composing  the  Brenham  Water  Company  in- 
corporated under  the  same  name,  under  the 
general  incoi^oration  act,  and  on  that  day  the 
city  was  notified  that  the  works  were  ready 
for  use;  but  it  was  found  that  the  water  sup- 
ply was  not  sufficient;  wherefore  the  water 
company  asked  the  acceptance  of  the  works 
by  the  city,  agreeing  to  give  an  additional 
supply  of  water  equal  to  that  they  were  then 
able  to  furnish,  and  to  increase  it  as  the  con- 
sumption demanded  it;  to  keep  on  hand  such 
fuel  as  would  enable  it  at  all  times  to  speed- 
ily put  the  pumps  in  motion  in  case  of  fire; 
to  keep  and  maintain  a  telephone;  to  pump 
the  stand-pipes  full  every  day,  and  to  bank 
the  fires  under  the  boilers;  to  allow  the  fire 
department  to  fill  the  fire  cisterns  from  any 
of  the  hydrants;  and  "to  adopt  and  enforce 
strict  rules  and  regulations  for  the  faithful 
carrying  out  of  the  purposes  for  which  it  is 
intended,  and  to  use  every  diligence  to  give 
the  city  of  Brenham  good  and  efficient  fire 
service."  The  city,  on  the  same  day,  accept- 
ed the  water-works  under  the  terms  of  the 
agreements  then  tendered;  and,  in  its  ordi- 
nance so  accepting,  it  provided  "that  no  pay- 
ment shall  be  made  on  said  contract  if  the 
said  company  docs  not  comply  with  its  agree- 
ment hereinbefore  recited,  but,  on  compliance 
therewith,  the  payments  shall  be  made,  com- 
mencing on  the  first  day  of  June,  1885."  The 
ordinances  did  not  give  to  the  city  the  power 
to  regulate  and  control  the  water-works,  and 
to  make  them  effective  in  case  the  water  com- 
pany failed  to  do  so. 
This   action    was    brought    to    recover   the 


POWER  TO  CHARTER  PRIVATE  MONOPOLIES. 


131 


in-ice  stipulated  for  the  use  of  hydrants  for 
the  time  intervening  June  1,  1SS5,  and  Janu- 
arj'  1,  ISSG.  The  ordinance  was  made  a  part 
of  the  petition. 

The  city  tiled  defenses,   thus  summarized, 
in  the  brief  of  its  counsel,  correctly: 
"(1)  A  general  demurrer. 
•'(-)  That  it  appeared  from  the  petition  that 
the  contract  sued  upon  created  a  monopoly 
and  perpetuity  in  plaintiff. 

"(3)  By  special  exception  that  no  authority 
to  nialie  said  contract  was  therein  alleged. 

"(4)  That  it  appeared  from  said  petition 
that  the  city  council  had  rented  the  hydrants 
for  a  period  of  twenty-five  years,  at  the  year- 
ly rental  of  three  thousand  dollars,  and  no 
authority  was  alleged  in  the  council  to  bind 
the  city  for  such  a  period  of  time. 
"(5)  A  general  denial. 

"(,0  and  7)  That  said  contract  was  inoper- 
ative, against  public  policy,  and  void,  because 
—First,  the  city  of  Brenham,  having  less  than 
ten  thousand  inhabitants,  was  prohibited  by 
the  constitution  and  laws  of  the  state  from 
levying  for  city  purposes  more  than  twenty- 
five  cents  on  the  one  hundred  dollai-s  valua- 
tion, on  the  property  subject  to  taxation, 
and  at  the  date  of  said  contract  the  curi-ent 
expenses  of  the  city,  including  salaries  of  offi- 
cers and  other  reasonable  and  necessary  ex- 
penses, annually  incurred,  exceeded  the  rev- 
enue derived  from  said  tax;  that  there  was 
no  excess  in  any  fund  which  could  be  appro- 
priate<l  to  the  payment  of  the  rent  of  said 
hydrant,  and  the  council,  having  no  means 
to  pay  said  rent,  and  having  exhausted  the 
limit  of  taxation  allowed  by  law,  were  not 
authorized  to  contract  said  debt;  that  at  the 
date  of  the  contract  the  entire  available  cur- 
rent revenue  of  the  city,  out  of  which  the  ex- 
penses incurred  by  said  contract  could  be 
paid,  amounted  to  the  sum  of  .$8,703.31,  an 
itemized  statement  of  which  is  given,  while 
the  current  expenses  amounted  to  the  sum  of 
$12,942.14,  an  itemized  statement  of  which  is 
given;  that  these  expenses,  exceeding  all  the 
available  revenues  of  the  city,  rendered  the 
contract  inoperative,  illegal,  and  void. 

"(8  and  9)  That  the  contract  was  an  at- 
tempt on  the  part  of  the  council  to  surrender 
its  legislative  discretion,  and  barter  away  the 
power  conferred  upon  it  by  law,  and  was  con- 
traiy  to  public  policy. 

"(10)  That  the  contract,  under  the  pretense 
of  obtaining  water  for  the  city,  was  in  truth 
and  in  fact  a  donation. 

"(11)  That  the  price  stipulated  was  so  ex- 
tortionate, unreasonable,  and  oppressive  as 
to  render  said  ordinance  void. 

"(12)  That  said  contract  exempted  the  prop- 
erty of  plaintiff  from  the  payment  of  city 
taxes  during  the  term  of  twenty-five  yeare, 
and  was  in  violation  of  law  which  prohibits 
the  council  from  appropriating  the  school  tax 
and  other  special  taxes  to  any  fund  other 
than  that  for  which  it  was  levied,  and  was 
therefore  dlegal. 
"(13)  The   defendant   specially   denied    (hat 


plaintiff  complied  with  its  undertakings,  in 
consideration  of  which  the  promises  of  the 
defendant  were  made,  particularly  in  refer- 
ence to  the  quantity  or  supply  of  water  to  be 
obtained,  and  quality  of  the  pipes  and  mains 
furnished  by  the  company. 

"(14)  That  for  these  reasons,  among  oth- 
ers, the  council,  on  the  tenth  day  of  July, 
1SS5,  adopted  an  ordinance  rescinding  the 
contract  with  the  Brenham  Water  Company, 
made  xVugust  IS,  1884,  and  the  supplemental 
contract  made  June  1,  1885,  and  repealing 
certain  sections  of  the  said  ordinance  enti- 
tled 'An  ordinance  to  provide  a  system  of  wa- 
ter-works for  the  city  of  Brenham,'  etc.  The 
sections  of  said  ordinance  so  repealed  were 
all  sections  which  required  the  water  com- 
pany to  furnish  water  to  the  city  for  any 
purpose,  or  authorized  the  payment  of  plain- 
tiff therefor  in  the  amount  claimed  in  the 
suit;  that  the  sections  in  the  ordinance  ex- 
cepted in  said  repealing  ordinance  were  the 
sections  which  gave  the  plaintiff  the  right 
and  privilege  of  supplying  water,  and  the 
provisions  therein  for  the  enjoyment  and  pro- 
tection thereof;  that  this  ordinance  of  July 
10th  is  a  bar  to  plaintiff's  action. 

"(15)  That,  at  the  date  of  the  contract, 
there  was  no  such  corporate  body  in  existence 
as  the  Brenham  Water  Company;  that  the 
pretended  existence  of  such  a  contract  at  the 
date  of  said  contract  was  false  and  fraudu- 
lent. 

"(16)  That  the  said  company,  through  its 
agents,  falsely  represented  to  and  assured  the 
council,  as  an  inducement  to  the  contract, 
that  the  system  of  water-works  would  secure 
a  general  reduction  in  premiums  paid  for  in- 
surance, and  that  the  amount  saved  in  this 
way  would  be  greater  than  the  amount  ex- 
pended for  water,  and  that,  instead  of  such 
reduction,  the  rates  had  been  increased. 

"(17)  That  the  supplementary  contract  of 
June  1st  was  made  by  the  council  while  act- 
ing under  a  mistake  of  existing  facts,  and  was 
obtained  through  the  false  representations 
of  W.  C.  Conner,  an  agent  of  plaintiff;  that 
the  council  was  not  afforded  any  opportunity 
of  inspecting  the  mains  and  pipes  then  under 
ground,  and  inaccessible,  and  in  the  posses- 
sion of  plaintiff,  and  the  defects  were  of  such 
a  character  as  to  render  it  imix)ssilile  to  dis- 
cover them  by  any  means  available  to  the 
council,  and  that  Conner  represented  that 
they  were  sufiicient  in  every  respect  for  the 
purposes  designated,  and  that  the  council 
was  misled  by  the  fraudulent  defects  in  said 
mains  and  pipes;  that,  by  reason  of  his 
false  statements  and  misrepresentations,  the 
alleged  ordinance  of  acceptance  was  fraud- 
ulent." 

The  court  sustained  demurrers  to  so  much 
of  the  answer  as  alleged  that  the  contract 
created  a  debt  in  excess  of  the  sum  the  city 
was  authorized  to  raise  by  taxation,  and  to 
so  much  as  set  up  the  ordinance  of  July  10, 
ISS."),  rescinding  the  contract  on  which  this 
;  action    is   based,    and    overruled   the   defend- 


132 


POWER  TO  CHARTER  PRIVATE  MONOPOLIES. 


ant's  demurrers  to  plaintiff's  pleadings.  The 
evidence  introduced  under  the  thirteenth,  six- 
teenth, and  seventeenth  paragraphs  of  the  de- 
fendant's answer  was  contlicting.  There 
was  a  verdict  and  judgment  for  the  plaintiff. 
^/)/  The  first  assignment  of  error  is  that  "the 

/court  erred  in  overruling  defendant's  demurrer 
alleging",  as  objections  to  plaintift"'s  origi- 
nal and  supplemental  petitions— First,  that  the 
contract  sued  upon  created  a  monopoly  and 
perpetuity;  second,  that  no  authority  was 
shown  in  the  city  council  making  the  contract 
to  bind  the  city  for  a  period  of  twenty-five 
years,  and  the  attempt  to  do  so  was  invalid, 
because  the  council  could  not  to  that  extent 
surrender  its  legislative  discretion  and  barter 
away  the  authority  reposed  in  it  by  law; 
third,  because  the  contract  was  an  attempt 
upon  the  part  of  the  council  to  limit  the  leg- 
islative authority  of  their  successors,  and  em- 

,  barrass    them    in    the    exercise    of    their   ex- 

I  elusive  discretion." 

The  city  of  Brenham  was  incorporated  un- 
der a  special  law  approved  February  4,  1873, 
and  the  first  section  of  its  charter  declares 
that  it  shall  "be  capable  of  contracting  and 
being  contracted  with."  Section  5  of  artjcle 
24  of  the  charter  gives  the  city  power  "to  pro- 
vide the  city  with  water;  to  make,  regulate, 
and  establish  wells,  pumps,  and  cisterns,  hy- 
drants, and  reservoirs,  in  the  streets  or  else- 
where, within  said  city,  or  beyond  the  limits 
thereof,  for  the  extinguishment  of  fires,  and 
the  convenience  of  the  inhabitants,  and  to 
prevent  the  unnecessary  waste  of  water." 
These  are  the  only  parts  of  the  charter  which 
have  any  bearing  on  the  questions  raised  by 
the  assignments. 

The  law  under  which  the  Brenham  Water 
Con^any  was  incorporated  provides  that 
"any  gas  or  water  corporation  shall  have  full 
power  to  manufacture,  and  to  sell  and  to  fur- 
nish, such  quantities  or  water  or  gas  as  may 
be  required  by  the  city,  town,  or  village  where 
located,  for  public  or  private  buildings,  or  for 
other  pm-poses;  and  such  corporation  shall 
have  power  to  lay  pipes,  mains,  and  conduct- 
ors for  conducting  gas  or  water  through  the 
streets,  alleys,  lanes,  and  squares  in  such 
city,  town,  or  village,  with  the  consent  of  the 
municipal  authorities  thereof,  and  under  such 
regulations  as  they  may  prescribe."  Rev. 
St.  1879,  art.  029.  "The  municipal  authorities 
of  any  city,  town,  or  village,  in  which  any 
gas-light  or  water  corporation  shall  exist,  are 
hereby  autliorized  to  conti-act  witli  any  such 
corporation  for  the  ligliting  or  supplying  with 
water  the  streets,  alleys,  lots,  squares,  and 
public  places  in  any  such  city,  town,  or  vil- 
lage." Id.  art.  r.30.  All  these  laws  may  be 
looked  to  in  determining  the  power  of  the 
city  to  make  the  contract  involved  in  this 
case,  thougli,  did  it  depend  solely  on  the  or- 
dinance of  August  18,  1884,  and  its  accept- 
ance, articles  029  and  (v50  of  the  Revised  Stat- 
utes of  1879  would  not,  in  terms,  be  applica- 
ble. 
Taking  all  the  laws  into  consideration,   we 


cannot  doubt  the  power  of  the  city  to  make- 
some  contract  through  which  the  city  might 
be  furnished  with  water.  It  becomes  neces- 
sary, for  the  proper  determination  of  this  case^ 
to  ascertain  the  character  of  the  contract  or» 
which  the  rights  of  the  parties  depend.  The 
subject-matter  of  the  contract  is  one  over  I 
which  the  city  had  control  solely  under  the- 
power  confided  to  it  as  a  municipal  govern- 
ment, to  be  exercised  for  the  pubhc  good, 
and  not  under  any  private  corporate  right  or 
proprietoi-ship.  The  first  section  of  the  or-f 
dinance  professes  to  give  and  to  grant  a 
right  and  a  privilege  to  the  water  company 
to  supply  the  city  and  its  inhabitants  witb 
water  for  the  period  of  2.5  years.  Was  it  in- 
tended to  make  this  right  and  privilege  ex- 
clusive for  that  period  of  time?  This  must  be- 
ascertained  from  the  language  of  the  ordi- 
nance, surroundings  of  the  parties,  and  pur- 
pose sought  to  be  accomplished.  The  ordi- 
nance, in  terms,  professes  to  give  and  to 
grant  a  right  to  do  certain  tilings,  and  there- 
fore to  receive  certain  benefits,  for  a  quarter 
of  a  century;  i.  e.,  to  confer  a  claim  to  da 
certain  things,  and  to  receive  a  fixed  compen- 
sation, which  may  be  enforced  for  that  pe- 
riod. It  not  only  professes,  in  general  terms, 
to  confer  such  a  right,  but  as  if  to  emphasize 
it.  and  to  fully  illustrate  the  character  of 
right  intended  to  be  granted,  it  terms  it  a 
"privilege."  The  word  "privilege,"  as  used 
in  the  ordinance,  is  evidently  not  used  in  the 
technical  sense  in  which  it  is  used  in  the 
civil  law,  or  even  under  the  common  law, 
when  used  in  the  sense  of  "priority,"  but  was- 
intended  to  be  given  its  ordinary  signification, 
— meaning  a  right  peculiar  to  the  person  on 
whom  confen-ed,  not  to  be  exercised  by  an- 
other or  others.  This  right  is  to  supply  the 
city  and  its  inhabitants  with  water  for  their 
varied  uses,  for  25  years,  at  fixed  prices  in 
enumerated  cases,  and  at  such  prices  as  the 
water  company  and  inhabitants  may  agree 
upon  in  other  cases.  The  word  "supplying" 
must  be  considered  in  its  connection,  with  a 
view  to  ascertain  whether  it  was  used  in  its 
primary  sense,  or  in  one  more  restricted; 
and,  so  considered,  we  can  have  no  doubt  that 
it  was  used  in  its  primary  sense,  intending^ 
therel)y  to  give  the  water  company  the  right 
and  privilege  to  furnish  to  the  city  and  its 
inhabitants  what  water  might  be  needed  or 
necessary  to  be  furnished  through  such  a  sys- 
tem. In  the  ordinance  under  consideration, 
it  can  mean  no  less  than  to  furnish  all  the 
water  the  city  and  its  inhabitants  may  need 
to  have  furnished  mider  the  power  given  to 
the  city,  through  its  charter,  and  this  for  the 
period  of  2o  years.  It  would  do  violence  to 
the  context  to  give  to  the  word  any  other 
meaning. 

If  notliing  more  appeared  than  we  have  con- 
sidered, to  give  character  to  the  contract,  and 
to  illustrate  the  nature  of  the  right  intended  to 
be  secured  through  it,  it  seems  to  us  that  there 
is  no  escape  from  the  conclusion  that  the 
parties  contracted,  and  intended  to  contract, 


POWER  TO  CHARTER  PRIVATE  MONOPOLIES. 


133 


that  tbe  right  of  the  water  company  should 
Le  exchisive.  The  lifth  and  sixth  sections  of 
the  ordinance,  however,  if  there  were  doubt, 
it  seems  to  us  would  remove  it.  The  water 
company  obligated  itself  to  erect  and  main- 
tain a  given  number  of  fire  hydrants  on  the 
mains,  which  it  absolutely  agreed  to  put 
down,  and  for  the  use  of  these  the  city  agreed 
to  pay  the  sum  of  $3,000  per  year-  for  the 
period  named.  It  further  obligated  itself  to 
extend  its  mains,  if  requested  to  do  so  by  the 
i-ity,  and  upon  each  mile  of  such  extension  to 
<?rect  not  less  than  10  tire  hydrants,  for  each 
one  of  which  the  city  promised  to  pay  a 
rental  of  !?00  per  annum,  as  provided  in  the 
tifth  section.  Was  the  city,  in  this  and  in 
iinother  part  of  the  ordinance  to  which  we 
have  referred,  agreeing  to  receive,  and  the 
company  to  furnish,  the  entire  (luantity  of  wa- 
ter to  be  used  for  fire  and  other  enumerated 
public  purposes  during  the  25  years?  The 
couti-act,  in  terms,  obligated  the  city  to  pay  for 
this  for  the  full  period,  whether  it  used  the 
water  or  not,  and  thus  made  the  only  right 
valuable  to  the  water  company  in  so  far  ex- 
<;lusive. 

If  the  city  refused  to  take  the  water,  and  ob- 
tained it  elsewhere,  if  the  contract  was  valid, 
iind  the  parties  are  to  be  supposed  to  have 
BO  considered  it,  then  the  city  would  but 
assume  a  double  burden,  which  it  cannot  be 
conceived  that  the  city  ever  contemplated. 
[The  language  of  the  contract,  the  surround- 
ings of  the  parties,  and  their'' evident  purpose, 
forbid  the  belief  that  they  either  intended  to 
make  the  right  and  privileges  of  the  water 
company  other  than  an  exclusive  right  to  fur- 
nish and  be  paid  for  all  the  water  the  city  and 
Its  inhabitants  might  need  to  have  furnished 
through  a  system  of  water-works  for  the  full 
period  of  25  years.  Does  the  charter  of  the 
■city  of  Brenham,  or  that  of  the  water  com- 
pany, confer  upon  the  city  the  power  to  make 
such  a  contract?  Both  charters  may  be  con- 
sidered together.  The  charter  of  the  city 
doubtless  gave  it  power  to  provide  the  city 
with  water,  and,  under  this,  it  may  be  held 
that  it  had  the  power  to  make  a  contract  to 
receive  and  pay  for  water  to  be  furnished  by 
some  other  corporation  or  person.  The  char- 
ter of  the  water  company  expressly  conferred 
upon  it  power  to  contract  with  the  city  to 
supply  it  with  water  for  public  purposes.  Its 
charter,  however,  is  under  the  general  law, 
and  the  express  power  given  to  such  corpora- 
tions was  evidently  given  to  enable  such  of 
them  as  might  be  located  in  cities  or  towns 
liaving  no  such  powers  as  had  the  city  of 
Brenham  to  contract  with  them.  The  sum- 
mary of  powers  which  a  municipal  corpora- 
tion has  and  may  exercise,  as  given  by  Mr. 
Dillon,  was  recognized  as  correct  in  tlie  case 
of  Williams  v.  Davidson,  43  Tex.  33.  "A  mu- 
nicipal corporation  possesses  and  can  exercise 
the  following  powers,  and  no  others:  First, 
those  granted  in  express  words;  second,  those 
^lecessarily  or  fairly  implied  in  or  incident  to 
ihe  powers  expressly  granted;   third,  those  es- 


sential to  the  declared  objects  and  purposes 
of  tlie  corporation,— not  simply  convenient, 
but  Indispensable.  Any  fair,  reasonable  doubt 
concerning  the  existence  of  the  power  is  re- 
solved by  the  courts  against  the  corporation, 
and  the  power  is  denied."    Dill.  Mun.  Corp.  89. 

No  express  power  is  conferred  upon  the 
city,  through  either  or  both  of  the  charters, 
to  make  a  contract  through  which  the  water 
company  could  become  entitled  to  the  use  of 
the  streets,  and  to  have  the  exclusive  right 
to  furnish  the  city  and  its  inhabitants  with 
water  at  a  fixed  rate  for  25  years;  and  we 
do  not  see  that  power  to  make  such  a  contract 
was  necessary  or  essential  to  the  proper  ex- 
ercise of  the  power  expressly  given.  Under 
charters  containing  grants  of  power  less  full 
and  express  than  are  contained  in  the  char- 
ter of  the  city  of  Brenham,  it  has  been  held 
that  power  existed  to  erect  and  operate  wa- 
ter-works under  the  control  and  owner- 
ship of  the  municipality  when  it  deemed  it 
necessary  to  the  public  good.  The  legis- 
lature had  given  power  to  the  city  of  Bren- 
ham to  erect,  control,  and  regulate  water- 
works, and  this  it  may  exercise,  if  it  has  or 
may  have  the  pecuniary  ability,  unless  con- 
strained by  the  contract  under  consideration. 
The  legislature  has  also  given  power  to 
every  city  within  which  one  or  more  private 
corporations  "may  have  water-works  to  con- 
tract with  one  or  all  of  them,  and  the  fur- 
ther power  to  permit  the  use  of  its  streets 
and  other  public  grounds  for  the  purposes 
of  such  works  contemplated  by  the  statute, 
by  as  many  water  companies  as  may  desire 
to  do  so.     Rev.  St.  1879,  arts.  629,  630,  3138. 

It  is  now  imiversally  conceded  that  "pow- 
ers are  conferred  on  municipal  corporations 
for  public  purposes;  and,  as  their  powers 
cannot  be  delegated,  so  they  cannot  be  bar- 
gained or  bartered  away.  Such  corpora- 
tions may  make  authorized  contracts,  but 
they  have  no  power,  as  a  party,  to  make  con- 
tracts or  pass  by-laws  which  shall  cede 
away,  control,  or  embarrass  their  legislative 
or  governmental  powers,  or  which  shall  dis- 
able them  from  performing  their  public  du-  ' 
ties."  Dill.  :Mun.  Corp.  97.  Whether  and 
how  a  municipal  government  will  exercise 
a  discretionary  power  conferred  upon  it 
must  necessarily  depend  upon  the  deter- 
mination of  that  question  by  it,  in  the  exer- 
cise of  whatever  legislative  power  has  been 
conferred  upon  it.  To  secure  the  means  to 
carry  out  such  legislative  determination,  the 
making  of  one  or  many  contracts  may  be- 
come necessary.  The  validity  of  every  con- 
tract a  municipal  corporation  may  assume 
to  make  must,  at  last,  depend  upon  the  va- 
lidity of  the  law  or  municipal  ordinance  un- 
der which  it  is  made.  If  the  legislature  had 
expressly  authorized  the  making  of  the  con- 
tract under  consideration,  it  would  doubtless 
be  binding,  unless  there  be  some  constitu- 
tional objection  to  such  a  law,— a  luatter 
which  will  be  considered  hereafter, — and  the 
ordinance  could  not  be  held  to  operate,  con- 


134 


POWER  TO  CHARTER  PRIVATE  MONOPOLIES. 


sidered  with  its  acceptance  as  a  contract, 
as  a  surrender  of  any  power  the  legislature 
intended  the  city  government  to  exercise  at 
all  times.  The  question  would  then  have 
been  determined  by  a  power  superior  to  that 
of  the  municipality,— a  power  from  which 
it  derives  all  the  power  it  has,  and  even  its  ex- 
istence as  a  corporation. 

The  city  having  been  given  such  power 
as  we  have  stated,  it  must  be  understood 
that  it  was  intended,  not  only  that  it  might 
use  it,  but  that  it  should  use  it,  if  deemed 
necessary,  for  the  public  welfare,  so  long  as 
the  power  is  possessed  by  it,  i.  e.,  until 
taken  away  by  the  legislature.  Will  not  the 
contract  under  consideration,  if  valid,  have 
the  effect,  not  only  to  embarrass  the  city 
government  in  the  exercise  of  the  power 
conferred  upon  it,  but  to  withdraw  from  it 
the  right  to  provide,  in  any  other  authorized 
way,  water  for  public  purposes  and  the  use 
of  its  inhabitants,  which  was  the  sole  pur- 
pose for  which  the  power  to  erect,  maintain, 
and  regulate  water- works  was  given  to  it? 
It  seems  so  to  us;  for,  as  we  have  before 
said,  the  contract,  in  effect,  assumes  to  give 
an  exclusive  right,— assumes  to  surrender  to 
a  private  corporation,  for  the  period  of  25 
years,  the  power  which  the  legislature  con- 
ferred on  the  municipal  government.  The 
power  given  to  a  municipal  corporation  to 
contract  in  relation  to  a  given  subject-matter 
does  not  carry  the  implication  that  it  may 
contract,  even  with  reference  to  that,  so  as 
to  render  it  unable  in  the  future  to  so  con- 
trol any  municipal  matter,  over  which  it  is 
given  power  to  legislate,  as  may  be  deemed 
best.  If  the  contract  relied  on  is  valid,  nei- 
ther the  repeal  of  the  charter  of  the  city, 
nor  any  other  act  of  the  legislature,  can  ab- 
rogate it.  If  it  is  invalid,  the  city  council 
had  the  right  to  declare  it  null,  and  to  refuse 
.  to  comply  with  it. 

In  the  case  of  Richmond  Co.  Gas-Light  Co. 
V.  Town  of  Middletown,  59  N.  Y.  231,  the 
town  authorities  were  empowered  to  cause 
the  streets  to  be  lighted  with  gas;  and  were 
required,  when  thoy  deemed  it  necessary  to 
do  so,  to  contract  with  the  gas  company  to 
furnish  and  lay  down  gas-pipes,  erect  lamp- 
posts, and  other  necessary  things,  and  to 
furnish  gas.  Under  these  facts  the  authori- 
ties contracted  with  the  gas  company  to  fur- 
nish gas  and  light  certain  streets  for  the 
term  of  five  years.  Subsequently  the  law 
which  conferred  authority  on  the  town  to 
make  the  contract  was  repealed,  and  an  ac- 
tion was  brought  to  recover  for  gas  furnished 
after  the  repeal,  and  it  was  held  that  the 
contract  was  invalid  on  the  ground  that  such 
a  contract  could  not  deprive  the  legislature 
of  its  power  to  repeal  a  law  affecting  a  mu- 
nicipal corporation.  It  was  said:  "If  the 
board  of  town  auditors  could  deprive  the 
legislature  of  this  power  for  live  years,  by 
entering  into  ii  contract  with  plaintiff  for 
that  time,  it  might  for  100  years,  by  con- 
tracting for  that  i)eriod.     I  think  it  entirely 


clear  that  no  such  power  was  conferred  by 
the  act  on  the  town  auditors." 

A  contract  made  with  a  municipal  corpora-^ 
tion  is  no  more  beyond  its  control,  if  its  ef- 
fect be  to  withdraw  from  or  embarrass  the 
municipality  in  the  exercise  of  any  legis- 
lative power  conferred  upon  it,  than  is  such 
a  contract  beyond  the  reach  of  the  legis- 
lature that  created  the  municipal  corpora- 
tion. It  is  solely  the  want  of  power  to  make 
the  contract  which  authorizes  either  body  toj 
disregard  it. 

In  the  case  of  State  v.  Cincinnati  Gas-Light 
&  Coke  Co.,  18  Ohio  St.  291,  it  appeared  that 
the  gas  company  had  a  charter  which  em- 
powered it,  within  the  city  of  Cincinnati,, 
to  do  all  the  acts  which  gas  companies,  in- 
corporated under  the  general  laws  of  this- 
state,  are  authorized  to  do,  including  the 
right  to  sell  gas  to  the  city  and  its  inhabit- 
ants. The  city  of  Cincinnati  was  also  au- 
thorized, by  its  chai-ter,  to  contract  witli  gas 
companies  for  lighting  its  streets,  and  to 
levy  taxes  to  meet  the  expenses.  So  stand- 
ing the  charters,  with  the  consent  of  the 
city  the  gas  company  acquired  all  the  rights 
which  the  city  had  contracted  to  permit  an 
individual  to  enjoy.  That  contract  embraced 
substantially  the  same  rights  and  privileges 
as  the  contract  before  us  professes  to  give 
to  the  plaintiff,  and  these  were  to  be  enjoyed 
for  25  years.  The  contract  was  held  to  be 
invalid.  Waiving  a  consideration  whether 
the  legislature  of  the  state  might  have  grant- 
ed such  rights  and  privileges,  the  court  said: 
"Assuming  that  such"  a  power  may  be  exer- 
cised directly,  we  are  not  disposed  to  doubt 
that  it  may  also  be  exercised  indirectly, 
through  the  agency  of  a  municipal  corpoi'a- 
tion,  clearly  invested,  for  police  purposes, 
with  the  necessary  authority.  But  we  have 
referred  to  these  authorities  as  our  justitica- 
tion  for  saying  that  when  a  franchise  so  far 
in  rpstraint  of  trade,  and  so  pregnant  with 
public  mischief  and  private  hardship,  is 
drawn  in  question,  and  it  is  claimed  to  be 
derived  through  a  municipal  ordinance  or 
contract,  the  power  of  the  municipal  author- 
ities to  pass  the  ordinance  or  enter  into  the 
contract  must  be  free  from  doubt.  It  must 
be  found  on  the  statute  book  in  express 
terms,  or  arise  from  the  terms  of  the  statute 
by  implication  so  direct  and  necessary  as  to 
render  it  equally  clear." 

In  the  case  of  Garrison  v.  City  of  Chicago, 
7  Biss.  48G,  Fed.  Cas.  No.  5.255.  it  appeared 
that  a  gas  company,  having  corporate  pow- 
ers  as  broad  as  any  the  plaintiff  can  claim 
under  its  charter,  contracted  with  the  city 
of  Chicago  to  supi^ly  it  with  gas  for  the 
period  of  10  years.  The  power  of  the  city 
to  buy  gas,  under  its  charter,  was  as  full 
as  is  the  power  of  the  city  of  Brenham  to 
contract  for  a  water  supply,  and  it  was  held 
that  the  city  had  no  power  to  contract  for 
so  long  a  time.  In  disposing  of  the  case  it 
was  said:  "The  officers  of  the  city— the 
members  of  the  council— are  trustees  of  the 


POWER  TO  CHARTER  PRIVATE  MONOPOLIES. 


135 


imbllc.  Tliere  can  be  no  doubt  that  the  right 
to  regulate  the  lightiug  of  the  streets,  and 
to  furnish  means  for  the  same  by  taxation, 
is  in  its  nature  legislative  power.  It  con- 
cerns the  whole  public  of  the  city.  The  ef- 
fect of  the  contract  in  question  by  the  city 
authorities  in  October,  1SG9,  if  valid,  was  to 
bind  their  successors  for  10  years  as  to 
these  matters  of  legislation.  If  It  be  con- 
ceded that  the  power  existed,  as  claimed, 
then  it  practically  follows  that,  at  the  end 
of  the  term,  in  1S79,  a  contract  may  be  made 
by  their  successors  without  limit,  and  which 
may  bind  the  public  iudellnitely.  I  am  un- 
willing to  sanction  a  principle  which,  in  a 
case  like  this,  would  lead  to  such  results. 
The  safer  rule  is  to  hold  the  officers  of  a 
municipality  to  a  rigid  accountability  in  the 
discharge  of  their  trust.  In  all  cases  of 
contract  to  run  for  years,  the  authority  to 
make  them  should  be  clear;  because  they  in- 
volve pecuniary  liability,  and  it  is  a  tax 
r.ix)n  future  property  owners  of  the  city." 

The  principles  asserted  in  the  case  of  Illinois 
&  St.  L.  Railroad  &  Canal  Co.  v.  St.  Louis,  2 
Dill.  84,  Fed.  Cas.  No.  7,007,  lead  to  the  same 
result. 

In  some  of  these  cases  there  seems  to  have 
been  no  power  given  to  the  mmiicipal  coiijo- 
rations  to  do,  through  works  to  be  created  and 
controlled  by  themselves,  the  things  for  which 
they  contracted  with  others.  If  so,  the  more 
potent  is  their  illustration  of  the  principle  in- 
volved. The  city  of  Brenham  was  not  in  that 
situation. 

In  the  case  of  City  of  Indianapolis  v.  In- 
dianapolis Gas  Co.,  06  lud.  400,  it  appeared 
that  the  gas  company,  by  its  charter,  was  em- 
powered to  manufacture  gas  to  be  used  for 
the  express  purpose  of  ligliting  the  city  of  In- 
dianapolis. One  section  of  its  charter  declar- 
ed that  "said  company  shall  have  the  privilege 
of  supplying  the  city  of  Indianapolis  and  its 
inhabitants  with  gas,  for  the  purpose  of  afford- 
ing light,  for  the  term  of  twenty  years."  An- 
other, "that  nothing  in  this  act  shall  be  so 
construed  as  to  grant  to  said  Gas-Light  &  Coke 
Company  the  exclusive  privilege  of  furnishing 
said  city  with  gas,  for  the  purposes  within 
named."  It  was  further  provided  that  "the 
said  city  of  Indianapolis,  in  its  corporate  ca- 
pacity, shall  have  power  to  contract  with  said 
coini)any  to  furnish  gas  for  the  purpose  of 
lighting  the  streets,  engine-houses,  market- 
houses,  or  any  public  places  or  buildings."  The 
gas  company  contracted  to  furnish  the  city 
with  gas  for  the  period  of  five  years  from  a 
given  date,  and  the  city  refused  to  pay  for 
some  received  during  the  time  embracetl  in  the 
contract,  and  to  recover  the  price  of  that  the 
action  was  brought.  It  was  held  that  the 
city  was  liable  for  gas  furnishetl  after  it  had 
elected  to  treat  the  contract  as  a  nullity,  and 
had  given  notice  that  it  would  not  pay  for  gas 
furnished,  and  for  lighting,  cleaning,  and  re- 
pairing lamps  on  and  after  a  day  named.  The 
provision  in  tlie  charter  that  the  act  should  not 
be  construed  to  give  an  exclusive  privilege  to 


the  gas  company  was  evidently  not  intended 
as  a  legislative  declaration  tliat  the  city  might 
not  by  contract  grant  an  exclusive  privilege, 
but  simply  to  avoid  a  misconsti-uction  of  the 
charter  itself,  and  to  leave  the  city  free  to 
make  such  contracts  as  it  deemed  proper, 
within  the  powers  granted.  The  privilege 
given  to  supply  the  city  and  its  inhabitants 
with  gas  for  the  period  of  20  years,  coupled 
with  an  express  power  to  the  city  to  contract, 
might  well  evidence  an  intention  on  the  part 
of  the  legislature  to  permit  it  to  contract  for 
a  longer  period  than  was  embraced  in  the  con- 
tract made.  If  the  legislature  so  willed,  and 
there  was  no  constitutional  objection  to  such 
legislation,  such  a  contract  would  be  valid. 
From  the  report  of  the  case,  it  is  doubtful, 
however,  whether  the  legislation  to  which  we 
have  referred  controlled  the  decision.  The  gas 
company  was  chartered  in  1831;  the  contract 
sued  on  was  made  July  22,  1870;  and  at  some 
time  after  the  incorporation  of  the  gas  com- 
pany, whether  before  or  after  the  contract  was 
made  not  appearing  from  the  opinion,  the  city 
was  incorporated  under  a  general  law,  one 
section  of  which  gave  the  city  power  "to  con- 
struct and  establish  gas-works,  or  to  regulate 
the  establishment  thereof  by  individuals  or 
companies,  or  to  regulate  the  lighting  of 
streets,  public  grounds  and  buildings,  and  to 
provide,  by  ordinance,  what  part,  if  any,  of  the 
expenses  of  lighting  any  street  or  alley  shall 
be  paid  by  the  owners  of  lots  fronting  there- 
on." The  inference  from  the  opinion  is  tbat 
the  power  of  the  city  to  make  the  conti-act 
was  based  on  the  power  given  to  regulate  the 
lighting  of  the  streets.  If  so,  then  the  deci- 
sion does  hold  that  the  city  had  power  to  make 
the  contract,  extending  over  several  years,  un- 
der a  grant  of  power  of  the  most  general  kind. 
This  case  was  cited  as  an  authority  to  sus- 
tain a  contract  for  a  supply  of  water  for  a 
city  embracing  a  period  of  20  years.  City  of 
Valparaiso  v.  Gardner,  7  Am.  &  Eng.  Corp, 
Cas.  629.  The  city  of  East  St.  Louis  was 
given  power  to  contract  and  be  contracted 
with;  to  provide  for  lighting  the  streets  and 
erection  of  lamp-posts;  and  to  make  such  or- 
dinances as  might  be  necessary  to  carry  into 
effect  those  and  other  powers  granted.  The 
East  St,  Louis  Gas  Companj'  was  given  power 
by  its  charter  to  contract  and  be  contracted 
with;  power  to  manufacture  and  sell  gas  for 
the  purpose  of  lighting  the  town  of  East  St. 
Louis  and  territory  contiguous,  the  town  and 
city  of  that  name  being  the  same.  The  gas 
company  was  also  given  the  exclusive  privi- 
lege of  supplying  the  town  and  contiguous  ter- 
ritory with  gas  for  30  years,  charges  not  to  ex- 
ceed rates  of  another  company,  and  10  per 
cent,  added.  Tlie  city  contracted  for  gas  for 
the  perioil  of  30  years,  and,  after  it  had  re- 
ceivetl  gas  for  some  time  under  the  contract,  it 
declined  to  receive  more,  holdiug  the  contract 
invalid  for  want  of  power  to  make  it;  where- 
upt)U  an  action  was  brought  to  recover  the  sum 
due  under  the  contract  for  the  period  the  city 
had  received  and  not  paid  for  gas  furnished. 


136 


POWER  TO  CHARTBR  PRIVATE  MONOPOLIES. 


Under  this  state  of  facts,  the  supreme  court  of 
Illinois  held  that  the  city  was  liable  for  gas 
furnished  before  it  disaffirmed  the  contract 
The  ground  on  which  the  contract  was  claim- 
ed to  be  invalid  was  the  want  of  power  to 
make  a  contract  to  bind  the  city  for  so  long  a 
period.  The  court  did  not  pass  on  the  validity 
of  the  contract,  nor  is  there  any  intimation  in 
the  opinion  of  either  of  the  judges  that  the 
court  would  have  declared  the  contract  bind- 
ing on  the  city;  while  in  an  elaborate  opinion 
by  one  of  the  judges  it  was  held  that  the  con- 
tract was  void,  and  that  it  was  beyond  the 
power  of  the  legislature  to  authorize  it. 

In  Atlantic  City  Water-Works  Co.  v.  Atlan- 
tic City  (X.  J.  Sup.)  6  Atl.  24,  it  was  held  that 
a  contract  made  by  a  city  having  power,  un- 
der its  charter,  to  provide  a  supply  of  water 
for  the  city,  by  which  it  agreed  to  receive 
water  from  a  Avater  company  so  long  as  the 
company  complied  with  its  obligation,  wajs 
valid.  From  the  report  of  the  case,  we  cannot 
ascei'tain  fully  what  the  charter  powers  of  ei- 
ther corporation  were;  but,  to  the  objection 
that  the  city  had  no  power  to  bind  itself  for  an 
indefinite  period,  the  court  replied  that  the 
contract  provided  a  means  by  which  the  city 
could  terminate  it  at  any  time. 

These  are  the  leading  cases  bearing  on  the 
question  before  us,  and  we  are  of  the  opinion 
that  the  better  reason  is  with  those  that  hold 
that  a  municipal  corporation  has  no  power, 
under  such  laws  as  operate  on  the  contract  be- 
fore us,  to  make  such  a  contract.  Municipal 
officers  hold  but  for  short  terms,  those  of  the 
city  of  Brenham  for  but  one  year,  and  the 
very  purpose  for  which  short  temis  of  office 
and  frequent  elections  are  required  is  to  leave 
the  control  of  municipal  affairs  as  near  as 
may  be  in  the  hands  of  the  people;  to  make 
the  municipal  administration  reflect,  as  near 
as  may  be,  the  will  of  the  public.  The  reasons 
but  emphasize  the  necessity  for  denying  to  a 
city  council,  or  other  governing  body,  the 
power,  by  contract  or  othei-wise,  to  disable  or 
hinder  from  time  to  time  the  full  and  free 
exercise  of  any  power,  legislative  in  its  char- 
acter, which  the  legislature  has  deemed  proper 
to  confer  upon  such  corporations.  Cases  will 
arise  in  which  it  becomes  necessaiy  to  make 
investments  for  permanent  improvements,  and 
as  to  such  things  the  acts  of  the  governing 
body  then  acting  must  necessarily  be  given 
effect.  The  improvement  in  such  cases  be- 
comes the  property  of  the  city,  and  its  power 
over  it  continues,  through  which  it  may  use, 
change,  or  so  deal  with  it  as  may  be  deemed 
best. 

We  do  not  wish  to  be  understood  to  hold  that 
a  municipal  con>oration  has  no  iwwer,  in  any 
event,  to  contract  for  such  things  as  are  con- 
sumed in  their  daily  use,  for  a  period  longer 
than  the  official  term  of  the  officers  who  make 
I  the  contract;    but  we  do  intend  to  be  under- 
stood to  hold  that  such  corporations  have  no 
I  power  to  make  contracts  continuous  in  char- 
I  acter.  in  reference  to  such  things  or  any  oth- 
1  I  ei-s,  by  which  they  will  be,  in  effect,  precluded 


from  exercising  from  time  to  time  any  power,  1  j 
legislative  in  character,  conferred  upon  them)) 
by  law. 

There  is,  however,  another  question  involv-  (^^ 
ed  in  this  case,  which  will  be  examined,  reach- 
ing fmlher  than  the  one  we  have  considered, 
and  involving,  not  only  tlie  power  of  the  mu- 
nicipal coii^oration  to  make  the  contract  sued 
on,  under  the  terms  of  the  charters  of  both 
coiiDorations,  but  involving  the  question  of  the 
power  of  the  legislature,  directly  or  indirectly, 
to  confer  upon  the  water  company  such  rights 
and  privileges  as  it  claims  imder  the  contract. 
It  is  claimed  that  the  contract  creates  a  mo- 
nopoly, and  that  this  is  in  violation  of  the 
constitution,  which  declares  that  "perpetuities 
and  monopolies  are  contrary  to  the  genius  of  a 
free  government,  and  shall  never  be  allowed." 
If  such  is  the  effect  of  the  contract,  it  is  for- 
bidden by  the  constitution,  and  no  legislation 
can  give  validity  to  it.  A  grant  which  gives 
to  one  or  an  association  of  persons  an  exclu- 
sive right  to  buy,  sell,  make,  or  use  a  given 
thing  or  commodity,  or  to  pursue  a  given  em- 
ployment, creates  a  mojiopoly.  There  are, 
however,  certain  classes  of  exclusive  privileges 
M'hich  do  not  amount  to  monopolies,  and  a 
consideration  of  these,  and  the  grounds  on 
which  they  stand,  is  not  now  necessary. 

The  right  to  exercise  the  exclusive  privilege  \ 
need  not  extend  to  all  places;  it  is  enough  that  ' 
it  is  to  operate  in  and  to  the  hurt  of  one  com-  I 
munity.     It  need  not  continue  indefinitely,  so  ' 
as  to  amoimt  to  a  peipetuity;    it  is  enough'^ 
that  it  be  an  exclusive  privilege,  for  a  period  , 
of  time,  of  the  character  forbidden.     The  more  | 
general  is  its  application  as  to  places  and  per- 
sons, and  the  longer  it  is  to  continue,  the  more 
hiu'tful  it  becomes.     In  the  case  before  us,  the  ' 
contract,  as  we  have  seen,  gives  the  exclusive 
right  to  sell  to  a  community  for  public  pur- 
poses for  the  period  of  25  years,  thus  affecting 
all  the  inhabitants  in  their  common  right  di- 
rectly, and  in  their  individual  rights  at  least 
indirectly.     This  right  to  sell  for  public  pur- 
poses carries  with  it,  through  the  contract,  the 
obligation  to  buy  for  public  uses.     It  gives 
the  exclusive  right  to  sell  to  the  inhabitants 
of  the  city  for  the  same  period,  for  all  the  pri- 
vate uses  for  which  they  may  need  water,  in 
such  ways,  and  to  be  so  applied,  as  it  can  be 
only  by  a  system  of  water-works;    which  is  a 
denial,  in  effect,  to  the  inhabitants  of  the  right 
to  buy  for  these  private  purposes  from  any 
otiier    water    company.     Such    an    exclusive 
right  prevents  competition,  and  tends  to  high 
prices;    all  matters  affecting  which  the  con- 
tract before  us  surrenders  the  right  further  to 
regulate  for  a  quarter  of  a  century.     It  has 
been  said,  in  cases  to  which  we  will   here- 
after refer,  that  there  can  be  no  monopoly  in 
the  use  of  a  street  to  lay  down  gas  or  water 
mains  or  pipes,  because  it  is  not  a  matter  of 
common  right  to  use  streets  for  such  purpose. 
This  may  be  admitted  without  affecting  the 
question  before  us.     When  such  use,  however, 
is  but  a  means  to  the  exercise  of  an  exclusive 
right  to  sell  water,  and  to  compel  a  city  or  its 


POWER  TO  CHARTER  PRIVATE  MONOPOLIES. 


137 


inhabitants  to  buy  it,  it  will  be  found  difficult 
to  separate  the  means  from  the  end  intended 
to  be  accomplislied.  A  system  of  water  or 
gas  worlvS  may  be  operated  in  a  town  or  city 
as  well  by  one  individual  as  by  a  private  cor- 
poration, if  he  have  tlie  ability.  No  corporate 
francliise  is  necessary  to  that  purchase.  It  is 
an  occupation  in  which  any  person  may  en- 
gage if  he  has  the  means,  which  may,  and  or- 
dinarily will,  involve  the  tight  to  use  streets 
and  other  public  grounds. 

Thus,  means  to  accomplish  the  purpose  can 
ordinarily  be  acquired  only  through  provision 
given  directly  or  indirectly  by  the  state,  but 
cases  may  arise  in  which  no  such  consent 
would  be  necessary.  Such  a  franchise,  when 
granted,  is  one  of  the  fullest  character,  and, 
from  its  nature,  subject  at  all  times  to  con- 
trol. 

Some  conflict  of  authority  exists  as  to 
whether  such  contracts  as  that  under  consid- 
eration create  monopolies.  The  question  has 
arisen  in  several  cases  in  which  gas  and  wa- 
ter companies  asserted  exclusive  right  to  use 
streets  for  laying  down  mains  and  pipes,  un- 
der charters  gi-anted,  which,  in  terms,  gave  ex- 
clusive right.  The  question  has  most  fre- 
quently arisen  in  cases  between  rival  compa- 
nies seeking  to  use  streets,  and  in  which  no 
furtlier  right  was  directly  involved. 

In  Norwich  Gas-Light  Co.  v.  Norwich  City 
Gas  Co.,  2.">  Conn.  19,  it  appeared  that  a  gas 
company,  holding  a  charter  which  in  terms 
gave  it  the  exclusive  right  to  use  streets  for 
the  puniose  of  laying  down  pipes,  renting  gas- 
posts,  burners,  and  other  things  necessary  to 
ligliting  the  streets,  alleys,  lanes,  public 
grounds,  and  other  places,  sought  to  restrain 
a  rival  gas  company  from  using  the  streets 
for  a  like  purpose;  and  it  was  held  that  the 
charter  created  a  monopoly  which  the  court 
would  not  sustain,  even  in  the  absence  of  a 
constitutional  provision  forbidding  monopo- 
lies. Such  a  claim  asserted  by  a  gas  company 
holding  under  a  contract  with  a  municipal  cor- 
poration, which  assumed  to  give  the  company 
the  exclusive  right  to  use  the  streets  for  the 
purposes  of  its  business,  in  another  case  was 
held  to  be  a  monoiKily,  and  on  that  ground 
the  claim  held  to  bo  invalid.  State  v.  Cincin- 
nati Gas-Light  &  Coke  Co.,  18  Ohio  St.  2!):'.. 

The  case  of  City  of  Memphis  v.  Memphis 
AVater  Co.,  5  Heisk.  52.5,  was  very  similar  in 
its  facts  to  the  Coimecticut  case  above  no- 
ticed, and  it  was  held  that  the  exclusive  right 
to  use  the  streets  of  the  city,  given  to  the  wa- 
ter company  by  its  charter,  did  not  create 
a  monopoly.  As  this  case  fairly  presents  the 
theory  on  which  such  exclusive  grants  to  use 
streets  for  gas  and  water  purposes  are  main- 
tained, '.ve  will  quote  a  part  -of  the  opinion. 
Tlie  court  said:  "The  question,  then,  is  nar- 
rowed down  to  the  inquiry,  did  the  individu- 
als composing  the  Memphis  Water  Company 
have  the  right,  before  their  incorporation,  in 
common  with  all  others,  to  erect  water-works 
in  Memphis,  to  take  up  pavements,  occupy  the 
fiti-eets,  and  do  such  things  us  were  necessary 


and  proper  in  completing  their  water-works? 
It  is  clear  that  none  had  the  right  to  do  those 
things  except  the  city  of  Memphis,  by  virtue 
of  its  corporate  powers,  and  this  right  on  the 
part  of  the  city  was  exclusive  until  it  was 
taken  away  by  the  legislature,  and  trans- 
ferred to  the  Memphis  Water  Company.  It 
is  no  more  a  monopoly,  when  conferred  on 
tlie  water  company,  than  when  it  belonged  to 
the  city  of  Memphis.  It  was  an  exclusive 
privilege  when  exercised  by  the  city.  It  is 
an  exclusive  privilege  in  the  Memphis  Water 
Company,  but  not  a  monopoly." 

In  New  Orleans  Gas  Co.  v.  Louisiana  Light 
Co.,  115  U.  S.  G50,  6  Sup.  Ct.  252,  it  appeared 
that  the  plaintiff  had  a  charter  which  gave 
it  the  exclusive  right,  for  tbe  period  of  50 
years,  of  making  and  supplying  gas-light  to 
the  city  of  New  Orleans  by  means  of  pipes 
or  conduits  laid  in  the  streets,  to  such  persons 
as  might  voluntarily  choose  to  contract  for  it. 
The  defendant  was  subsequently  chartered 
under  a  general  law  authorizing  the  formation 
of  corporations  for  certain  purposes,  among 
which  was  the  construction  and  maintenance 
of  works  for  supplying  cities  or  towns  with 
gas,  and  it  had  obtained  permission  from  the 
common  council  of  New  Orleans  to  use  its 
streets  and  other  public  ways  and  places  to 
lay  mains,  pipes,  and  conduits.  This  it  was 
proceeding  to  do  when  a  suit  was  brought  to 
restrain  it,  and  it  was  held  that  the  exclusive 
grant,  in  connection  with  the  facts  shown, 
constituted  a  contract  which  state  legislation 
could  not  impair.  In  disposing  of  the  case, 
it  was  said:  "Legislation  of  that  character 
is  not  liable  to  the  objection  that  it  is  a  mere 
monopoly,  preventing  citizens  from  engaging 
in  an  ordinary  pursuit  or  business,  oi^en  as  of 
common  right  to  all,  upon  terms  of  equality; 
for  the  right  to  dig  up  the  streets  and  other 
public  places  of  New  Orleans,  and  place  their 
pipes  and  mains  for  the  distribution  of  gas 
for  public  and  private  use,  is  a  franchise,  the 
privilege  of  exercising  which  could  only  be 
granted  by  the  state,  or  by  the  municipal  gov- 
ernment of  that  city,  acting  under  legislative 
authority.    *    *    *" 

To  the  same  effect  is  the  decision  of  the 
supreme  court  of  Louisiana  in  Crescent  City 
(Jas-Light  Co.  v.  New  Orleans  Gas-Light  Co., 
27  La.  Ann.  138,  147,  in  which  it  was  said: 
"Tlie  right  to  operate  gas-works,  and  to  illu- 1 
minate  a  citj',  is  not  an  ancient  or  usual  oc-  . 
cupation  of  citizens  generallj'.     No  one  has 
the  right  to  dig  up  the  streets,  and  lay  down  ' 
gas-pipes,  and  carry  on  the  business  of  light-  j 
ing  the  streets  and  the  houses  of  the  city  of 
New  Orleans,  without  special  authority  from 
the  sovereign.     It  is  a  franchise  belonging  to  . 
tlie  state,  and  in  the  exercise  of  the  police 
power,  the  state  could  carry  on  the  business  / 
itself,    or    select    one    of   several    agents    to 
do  so." 

Sultse(iuently  to  the  granting  of  the  charter 
through  which  the  plaintiff  claimed,  the  con- 
stitution of  the  state  of  Louisiana  was  so 
changed,  while  preserving  rights,  claims,  and 


138 


POWER  TO  CHARTER  PRIVATE  MONOPOLIES. 


contracts  then  existing,  as  to  provide  that 
"the  monopoly  features  in  the  charter  of  any 
corporation  now  existing  in  this  state,  save 
such  as  may  be  contained  in  the  charter  of 
railroad  companies,  are  fully  abrogated,"  and 
it  was  claimed  that  this  could  operate  to  di- 
vest the  plaintiff's  privilege.  As  to  this  the 
court,  however,  said:  "The  monopoly  clause 
only  evidences  a  purpose  to  reserve  the  policy, 
previously  pursued,  of  granting  to  private  cor- 
porations franchises  accompanied  by  exclu- 
sive privileges  as  a  means  of  accomplishing 
public  objects.  That  change  of  policy,  al- 
though manifested  by  constitutional  enact- 
ments, cannot  affect  contracts  which,  when 
entered  into,  were  within  the  power  of  the 
state  to  make."  The  inference  from  the  lan- 
guage used  is  that,  had  the  constitutional  pro- 
vision in  regard  to  monopoly  features  in 
charters  been  in  force  when  the  plaintiff's 
charter  was  granted,  its  exclusive  privilege, 
franchise,  or  whatever  it  may  be  termed, 
■would  have  been  inoperative. 

In  New  Orleans  Water-Works  Co.  v.  Rivers, 
115  U.  S.  674,  6  Sup.  Ct.  273,  a  suit  was 
brought  by  the  company  to  restrain  Rivers 
from  laying  pipes,  mains,  and  conduits  from 
the  Mississippi  river  to  the  St.  Charles  Hotel; 
and  the  claim  was  based  on  the  fact  that 
the  plaintiff  had  a  charter  which  gave  it  the 
exclusive  right  to  supply  the  city  of  New  Or- 
leans and  its  inhabitants  with  water  from 
the  Mississippi  river,  or  other  stream,  by 
mains  or  conduits,  with  such  right  to  lay 
them  in  the  sti'eets,  public  places,  and  lands 
of  the  city,  which  had  been  granted  in  corn 
sideration  that  it  would  furnish  water  to  the 
city  free  of  charge.  The  claim  of  the  plaintiff 
was  sustained,  and  the  charter  held  to  be  a 
contract  that  could  not  be  impaired  by  the 
constitutional  provision  afterwards  adopted, 
to  which  reference  is  made  in  the  preceding 
case.  The  same  inferences  may,  however, 
be  drawn  from  the  opinion,  as  to  what  would 
have  been  the  effect  of  the  provision  of  the 
constitution  repealing  "the  monopoly  features 
in  the  charter  of  any  corporation,"  had  it  been 
operative  at  the  time  the  plaintiff's  charter 
was  granted. 

In  the  case  of  State  v.  Milwaukee  Gas  Co., 
29  AVis.  400,  it  was  conceded  that  the  grant 
of  an  exclusive  right  to  lay  pipes,  for  the  pur- 
pose of  conducting  gas,  in  the  streets,  ave- 
nues, and  other  public  places  of  a  city,  cou- 
pled with  the  exclusive  right  to  manufacture 
and  sell  gas  to  its  inhabitants  for  15  years, 
created  a  monopoly. 

In  the  Slau^hter-IIou.se  Cases,  16  Wall.  61, 
.  65,  102,   121,  128,   it  was  conceded  that  the 
[  exclusive  privilege  in  question,  in  these  cases, 
was  a  monopoly;   but  in  these,  as  in  the  case 
'  last  above  cited,  it  was  held  that,  in  the  ab- 
sence of  some  constitutional  provision  forbid- 


ding monopolies,  the  grant  of  these  exclusive  ' 
privileges  was  not  invalid.  Under  an  exclu- 
sive grant  of  privileges,  similar  to  those  in 
question  in  the  Slaughter-House  Cases,  it  wa& 
held  in  the  case  of  City  of  Chicago  v.  Rumpff, 
45  111.  97,  that  a  monopoly  was  created.  The 
court  said:  "Such  action  is  oppressive,  and 
creates  a  monopoly  that  never  could  have 
been  contemplated  by  the  general  assembly. 
It  impairs  the  rights  of  all  other  persons,  and 
cuts  them  off  from  a  share  in  not  only  a  legal,, 
but  a  necessary,  business." 

In  the  case  of  State  v.  Columbus  GaSrLight 
&  Coke  Co.,  34  Ohio  St.  581,  it  was  held  that 
such  an  exclusive  right  as  the  contract  in  this 
case  gives,  created  a  monopoly. 

It  will  not  do  to  say  that  an  exclusive  right 
in  a  municipal  corporation  to  operate  water 
or  gas  works  stands  upon  the  same  ground  as 
does  such  exclusive  right  held  by  a  private 
j  corporation  or  an  individual.    In  the  one  case 
I  the  right  is,  in  effect,  exercised  by  the  people 
j  who  are  to  be  affected  by  it,   and   not  for 
I  profit,  but  for  the  welfare  and  convenience  of 
j  the  public  and  the  inhabitants  of  the  corpora- 
I  tion.    The  correction  of  abuses  in  its  manage- 
ment, whereby  oppression  may  be  avoided,  is 
!  in  the  hands  of  the  people;    while,   on   the 
I  other  hand,  such  works  are  operated  for  pri- 
i  vate  gain,  with  every  incentive  to  oppression, 
without  power,  in  those  to  be  affected,  to  re- 
I  lieve  themselves  from  it.    In  the  one  case  the 
I  exclusive  right  may  create  a  monopoly,  and 
j  in  the  other  not. 

!  Tlie  exclusive  rights,  given  by  the  contract 
]  before  us,  lead  to  the  same  results  as  a  mo- 
i  noix)ly  in  any  other  matter,  and  whether  a 
;  monopoly  or  not  is  best  ascertained  by  the 
I  results  which  are  brought  about  by  a  con- 
•  tract  or  law,  and  the  exercise  of  rights  the 
j  one  or  tlie  other  may  profess  to  confer.  We  are 
i  of  the  opinion  that  the  exercise  of  the  ex- 
;  elusive  rights  conferred  on  the  water  com- 
i  pan  J'  produce  the  same  results  as  would  the 
!  exercise  of  an  exclusive  right  which  would 
!  fall  within  the  most  exacting  definition  of  a 
I  monopoly,  and  that  the  allow'ance  or  creation 
I  of  such  exclusive  rights  is  contrary  to  the 
spirit  of  the  constitution  of  this  state. 

There  are  many  other  questions  in  this 
case  which,  in  view  of  the  controlling  charac- 
ter of  those  already  considered,  need  not  be 
examined. 

If  the  appellee  furnished  water  between  the 
time  the  works  were  put  in  operation,  under 
the  ordinance  passed  June  1,  1885,  and  the 
tenth  July  of  that  year,  when  the  city  de- 
clined further  to  regard  the  contract  as  bind- 
ing, for  that  the  city  ought  to  be  held  liable; 
but  this  is  the  extent  of  the  right  of  the  ap- 
pellee to  recover  for  water  furnished  the  city. 
The  judgment  will  be  reversed,  and  the 
cause  remanded. 


OWNERSHIP  OF  MUNICIPAL  MONOPOLIES. 


13^ 


LINN  et  al.  v.  BOROUGH  OF  CHAMBERS- 
BURG. 

(28  Atl.  842,  160  Pa.  St.  511.) 

Supreme  Court  of  iV'nnsylvania.     March  2U, 
18tM. 

Appeal  from  court  of  common  pleas, 
Franklin  county;  John  Stewart,  Judge. 

Suit  by  S.  M.  Linn  and  others  against  the 
biugcss  and  town  council  of  the  borough  oi 
Chamber sburg.  From  a  decree  for  defend- 
ant, plaintiffs  appeal.     Affirmed. 

The  report  of  the  master,  William  Alexan- 
der. Esq.,  and  the  opinion  of  the  com't  below, 
were  as  follows: 

"Master's  Report. 
"Finding  of  Facts. 

"First.  It  is  admitted  that  all  the  plain- 
tiffs in  this  case  are  taxpayers  of  the  bor- 
ougli  of  Chambersburg,  and  that  all  except 
Augustus  Duncan  and  Benjamin  C.  Ross  are 
citizens  resident  in  the  said  borough. 

"Second.  The  defendant  in  this  proceeding 
is  the  bm-gess  and  town  council  of  the  bor- 
ough of  Chambersburg,  a  municipal  corpora- 
tion incorporated  into  a  borough  by  an  act  of 
the  general  as.sembly  of  Pennsj-lvania,  passed 
and  approved  the  21st  day  of  March,  A. 
D.  1803,  and  by  the  said  act  of  incorpora- 
tion the  limits  and  bouudaries  of  tlie  said 
borough  were  particularly  set  forth,  and  it 
was  enacted:  'That  from  and  after  tlie  first 
Monday  in  May  (1803)  the  burgess  and  town 
council  duly  elected  and  their  successors 
shall  be  one  body  politic  and  corporate  in 
law,  by  the  name  and  style  of  the  Burgess 
and  Town  Council  of  the  Borough  of  Cham- 
bersburg and  shall  have  perpetual  succes- 
sion. And  the  said  burgess  and  town  coun- 
cil aforesaid  and  their  sucessors,  shall  be  ca- 
pable in  law,  to  have,  get,  receive,  hold,  and 
possess  goods  and  chattels,  lands  and  tene- 
ments, rents,  liberties,  jurisdictions,  fran- 
chises and  hereditaments,  to  them  and  to 
their  successors  in  fee  simple  or  otherwise, 
not  exc(>eding  the  yearly  value  of  five  thou- 
sand dollars,  and  also  to  give,  gi'ant,  sell,  let 
and  assign,  the  same  lands,  tenements,  here- 
ditaments and  rents,  and  by  the  name  and 
style  aforesaid,  they  shall  be  capable  in  law 
to  sue  and  be  sued,  plead  and  to  bo  im- 
plea(l(Ml,  in  any  of  the  coiu-ts  of  law  in  this 
commonwealth,  in  all  manner  of  actions 
whatsoever,  and  to  have  and  use  one  com- 
mon seal,  and  the  same  from  time  to  time  at 
their  will  to  change  and  alter.'  See  section 
3.  Also:  'That  it  shall  and  may  be  lawful 
for  the  town  council  to  meet  as  often  as  oc- 
casion may  require,  and  enact  such  by-laws, 
and  make  such  rules,  regulations  and  ordi- 
nances as  shall  be  determined  by  a  majority 
of  them  necessary,  to  promote  the  peace, 
good  order,  benefit  and  advantage  of  said 
borough,  particularly  by  providing  for  the 
regulation  of  the  market,  streets,  alleys  and 
highways  therein;   they  shall  have  power  to 


assess,  apportion  and  appropriate  such  taxes 
as  shall  be  determined  by  a  majority  of 
them  necessary  for  carrying  the  said  rules 
and  ordinances  from  time  to  time  into  com- 
plete effect;  *  *  *  provided,  that  no  by- 
law, rule  or  ordinance  of  the  said  corpora- 
tion shall  be  repugnant  to  the  constitution  or 
laws  of  the  United  States  or  of  this  com- 
monwealtli.  ♦  *  *  Provided  also,  that  no 
tax  shall  be  laid  in  any  one  year,  on  the  val- 
uation of  taxable  property  exceeding  one 
cH'iit  in  the  dollar,  imless  some  object  of  gen- 
eral utility  shall  be  thought  necessary,  in 
which  case  a  majority  of  the  freeholders  of 
said  borough  in  writing  under  their  hands, 
sliall  approve  of  and  certify  the  same  to  the 
town  council,  who  shall  proceed  to  assess  the 
same  accordingly.'    See  section  6. 

"Third.  The  said  borough  of  Chambersburg 
has  continued  to  hold  and  exercise  the  rights 
and  privileges  and  perform  the  duties  grant- 
ed and  imposed  upon  it  as  a  body  politic  or 
municipal  corporation  from  the  date  of  its 
incorporation  until  the  present  time,  imder 
its  original  charter  and  the  acts  of  the  gen- 
eral assembly  of  Pennsylvania  since  passed 
in  relation  thereto. 

"Fourth.  Since  the  early  part  of  the  year 
1800,  at  the  date  of  the  filing  of  the  bill  in 
this  case,  March  22,  1892,  and  at  the  prespnt 
time,  the  said  borough  of  Chambersburg 
owns,  controls,  and  operates  an  electric  light 
plant  for  the  purpose  of  providing  an  ample 
supply  of  light  for  its  streets,  public  build- 
ings, and  grounds;  and  a  short  time  prior  to 
the  filing  of  this  bill,  to  wit,  about  December 
7,  1891,  the  said  borough  made  some  addi- 
tions to  the  engine,  dynamos,  and  other  ma- 
chinery about  the  plant,  and  since  that  date 
it  has  been  supplying  a  number  of  the  inhab- 
itants of  the  borough  with  electricity  for  the 
purpose  of  lighting  their  stores  and  places  of 
business,  and  it  has  charged  and  received 
certain  fixed  charges  and  prices  for  the  said 
supply  of  electricity  and  light. 

"Fifth.  The  capacity  of  the  said  plant  a&^ 
used  and  operated  for  street-lighting  pur- 
poses, prior  to  the  additions  above  referred 
to,  was  sufficient  for  the  supply  of  seventy 
arc  lights  of  2,0(X>  candle  power  each,  and 
this  entire  number  of  lights  was  used  in 
lighting  the  streets  and  public  buildings  of 
the  borough. 

"Sixth.  The  additions  and  improvements 
made  to  the  plant  prior  to  the  filing  of  the 
bill  in  this  case,  and  within  a  short  time 
thereafter,  consisted  of  the  following  items: 
Conversion  of  the  single-cylinder  engine  into 
a  compound  cylinder,  and  necessary  pulleys 
and  shafting,  and  the  erection  of  a  new 
stack  to  the  boiler,  at  a  cost  of  !?G9S;  the 
erection  of  a  commercial  circuit,  for  wires, 
poles,  brackets,  insulators,  etc.,  and  labor,  at 
a  cost  of  about  $200;  the  purchase  of  thirty 
or  forty  arc  lamps,  at  a  cost  of  from  $1,200 
to  $1,000;  the  purcha.se  of  a  fifty  arc  light 
dynamo,  at  a  cost  of  $2.37.5.  These  addi- 
t'ums  and  improvements  were  made  by  the 


140 


OWNERSHIP  OF  MUNICIPAL  MONOPOLIES. 


l)orough  for  the  piirpose  of  increasing'  the  ca- 
pax2ity  of  the  plant,  so  as  to  be  able  to  supply 
-electricity  to  the  inhabitants  of  the  borough 
for  lighting  purposes  in  their  stores  and 
-dwellings,  at  fixed  charges  and  prices,  and 
the  said  borough  has  been  furnishing,  and 
■still  is  supplying,  the  said  citizens  with  elec- 
tricity for  lighting  purposes  as  aforesaid. 
Prior  to  March  22,  1S92.  seven  arc  lamps 
were  iu  use  by  citizens  of  the  borough,  and 
since  that  date  the  number  has  been  in- 
creased until  at  least  thirty  arc  lamps  of 
2,000  candle  power  are  now  in  use  by  sundry 
•citizens  of  the  said  borough,  and  the  same 
are  furnished  with  electricity  by  the  borough 
at  rates  and  prices  fixed  by  the  burgess  and 
town  coimeil  of  the  borough  of  Chambers- 
burg  by  ordinance." 

(Seventh  finding  sets  out  the  act  of  assem- 
bly of  May  20,  1891.) 

"Eighth.  In  accordance  with  the  provisions 
-of  section  2  of  the  said  act  of  May  20,  1891, 
and  in  the  manner  provided  by  the  act  of 
April  20,  1874,  and  the  amendment  thereto, 
passed  June  9,  1891.  the  said  borough,  on  the 
7th  day  of  December,  1891,  at  a  regular 
meeting  of  the  biu'gess  and  town  council  of 
the  said  borough,  signified  its  desire,  by  a 
majority  vote  of  the  said  town  council,  to 
make  an  increase  of  iudebtedne.ss  of  the  said 
"borough  in  the  sum  of  $10,000  for  the  piu-- 
pose  of  increasing  the  electric  light  plant 
to  furnish  the  citizens  with  commercial  light 
•and  electricity,  and  to  submit  to  the  vote 
of  the  qualified  electors  of  the  borough 
the  question  as  to  the  said  increase  of  in- 
•debtedness  at  the  election  to  be  held  in 
February,  1892.  And  the  said  burgess  and 
town  council  of  the  said  borough  gave 
notice  to  the  qualified  electors  of  the  said 
"borough,  by  weekly  advertisement  in  three 
■newspapers  published  in  said  borough,  for 
thirty  days  prior  to  the  IGth  day  of  Feb- 
ruary, 1892,  setting  forth  the  action  of  the 
said  tow'n  council,  and  that  an  election 
-would  be  held  at  the  places  of  holding  the 
municipal  elections  in  said  municipality  on 
the  10th  day  of  February,  1892  (Tuesday). 
Ijetween  the  hours  of  7  a.  m.  and  7  p.  m.  of 
said  day,  for  the  purpose  of  obtaining  the  as- 
sent of  the  electors  thereof  to  such  increase 
-of  indebtedness;  and  the  said  notice  con- 
tained a  statement  of  the  amount  of  the  last 
assessed  valuation  of  property,  the  amount 
•of  the  then  existing  debt,  the  amoimt  and 
percentage  of  the  proposed  increase,  and  the 
pxu-pose  for  which  the  indebtedness  was  to 
be  increased,  the  form  of  the  ballot  and 
method  of  voting,  and  the  particular  places 
for  voting  in  the  several  wards. 

"Ninth.  The  said  election,  as  specified  in 
the  said  notice,  was  duly  hold  on  the  IGth 
day  of  Febiiiary,  1892.  and  resulted  in  favor 
■ot  the  increase  of  the  debt  of  the  said 
borough  in  the  sum  of  $10,000,  for  the  pur- 
pose specified  in  the  said  notice.  The  re- 
turn of  the  said  election  was  duly  certified, 
iind,  with  a  certified  copy  of  the  action  of 


councils  and  the  advertisement,  It  was  made 
a  record  of  the  court  of  quarter  sessions  of 
Franklin  county,  and  a  certified  copy  of  the 
record  as  aforesaid  delivered  by  the  clerk  of 
the  said  com"t  to  the  corporate  authorities, 
and  by  them  entered  upon  the  minutes  of  the 
said  corporation. 

"Tenth.  By  virtue  of  the  authority  thus 
conferred  upon  them,  the  burgess  and  town 
council  of  the  said  borough  proceeded  to  in- 
crease the  indebtedness  of  the  said  borough 
in  the  sum  of  $10,000  for  the  pm'pose  of  en- 
larging and  extending  the  electi-ic  light  plant 
of  the  said  borough,  and  passed  an  ordinance 
on  the  3d  day  of  March,  1892,  entitled  'An 
ordinance  relating  to  the  supply  of  incan- 
descent and  arc  lighting  and  electricity,  by 
the  boro^ugh  of  Chambersbm-g,  Pa.'  This 
ordinance  provides  for  conti-acts  to  be  en- 
tered into  by  the  borough  with  each  indi- 
vidual citizen  desiring  the  use  of  electricity 
for  lighting  puiijoses  in  stores,  dwellings, 
chm'ches,  fairs,  festivals,  and  other  places, 
and  prescribes  the  duties  of  the  borough  on 
the  one  part,  and  the  purchaser  or  consumer 
on  the  other  part,  and  fixes  the  rates  and 
prices  to  be  charged  by  the  borough  for  the 
supply  of  electricity,  by  arc  and  incandescent 
lights,  to  these  persons  and  places. 

"Eleventh.  In  fm-therance  of  the  design 
and  purpose  of  the  biu'gess  and  town  council 
of  the  borough  of  Chambersbtu-g  to  increase 
the  capacity  and  enlarge  the  electric  Ught 
plant  of  the  said  borough  for  the  supplying 
of  electi'icity  to  its  inhabitants  for  lighting 
purposes,  the  said  authorities,  before  the  date 
of  the  filing  of  the  bill  in  this  case,  and  after 
the  said  election  held  on  the  10th  day  of  Feb- 
ruary, 1892,  by  letter,  through  the  chairman 
of  the  committee  on  electric  light,  invited 
proposals  from  the  Thomson-Houston  Elec- 
tric Light  Company,  of  Philadelphia,  the 
Westinghouse  Electric  and  Manufactuiing 
Company,  of  Pittsbm-gh,  and  the  Edison  Elec- 
tric Ught  Company,  of  ,  and  received 

proposals  or  bids  from  the  first  two  com- 
panies for  the  fm-nishing  of  a  dynamo  for  in- 
candescent lighting  of  a  capacity  for  CiO  in- 
candescent lamps,  and  the  necessary  appli- 
ances to  operate  the  same,  and  the  said 
borough  received  an  incandescent  dynamo  of 
the  capacity  indicated,  with  appliances,  from 
the  Thomson-Houston  Company,  but  have 
never  consummated  the  purchase,  or  put  the 
same  in  operation,  owing  to  the  filing  of  the 
bill  in  this  case.  The  said  borough  also  en- 
tered into  a  contract  with  the  Taylor  Engine 
Company  for  the  purchase  of  an  engine  and 
boilers  and  necessary  ai)pliances.  at  a  cost  of 
$.j,S39,  for  the  piu-pose  of  supplying  addition- 
al motive  power  to  meet  the  increased  de- 
mand for  power  in  nuining  the  commercial 
lighting.  This  contract  was  entered  into  be- 
fore the  bill  in  this  case  was  filed,  and  after 
Febiiiary  10,  1892.  and  without  inviting  bids 
for  the  same  or  advertising  for  proposals, 
but  the  engine,  etc.,  have  never  been  deliv- 
ered, on  account  of  the  filing  of  the  bill  in 


OWNERSHIP  OF  MUNICIPAL  MONOPOLIES. 


141 


this  case.  The  said  borough,  during  the  same 
period,  advertised  for  and  received  bids  for 
the  necessary  changes  in  the  building  and 
brick  stiic'k.  but  never  entered  into  contract 
for  the  same  on  account  of  the  filing  of  the 
bill  in  this  case. 

"Fourteenth.  The  bonds  provided  for  by 
the  action  of  the  burgess  and  town  council 
of  the  borough  of  Chambersburg  and  the 
election  of  February  IG,  18'J2,  for  the  increase 
of  the  indebtedness  of  the  borough  in  the 
sum  of  .'JlU.OOO  were  never  issued  by  the  said 
municipality,  the  action  in  reference  thereto 
being  delayed  by  the  tiling  of  the  bill  in  this 
case. 

******* 

"Nineteenth.  On  the  20th  day  of  April, 
1892,  at  the  date  the  burgess  and  town  coim- 
cil  of  the  said  borough  of  Chambersburg  pro- 
vided for  the  issuing  of  the  bonds  of  the  said 
borough  in  the  sum  of  $10,000  for  the  pur- 
pose of  enlarging  the  electric  light  plant,  the 
said  burgess  and  town  council  passed  the  fol- 
lowing resolution:  'Resolved  that,  in  order 
to  provide  for  the  payment  of  the  interest 
and  principal  of  said  bonds,  that  an  annual 
tiix  equal  to  at  least  eight  per  centum  of  the 
amount  of  said  increased  debt  be  levied  and 
assessed,  to  be  applied  exclusively  to  the  pay- 
ment of  the  interest  and  principal  of  said 
indebtetiness;'  and  on  the  23d  day  of  May, 
1892,  the  said  bm'gess  and  town  council  fixed 
the  tax  levy  for  the  year  commencing  June 
1,  1892,  at  four  mills  on  the  dollar  for 
borough  purposes,  and  five  mills  on  the  dol- 
lar for  the  payment  of  interest  and  the  liqui- 
dation of  the  principal  of  bonds. 

******* 

"Conclusions  of  Law. 
«**«*** 

"Second.  The  act  of  tlie  general  assembly 
of  May  20,  1891,  and  the  action  of  the  bur- 
gess and  town  council  of  the  borough  of 
Chanibersbm'g  in  pursuance  thereof,  are  not 
in  violation  of  section  7,  art.  9,  o'f  the  consti- 
tution of  Pennsylvania,  and  the  said  section 
of  the  constitution  docs  not,  in  letter  or  spirit 
ajid  meaning,  resti-ain  or  prohibit  the  legis- 
lation and  action  above  referred  to. 

"Thii-d.  The  proposed  enlargement  of  the 
electric  light  plant  of  the  borough  of  Cham- 
bersburg, as  set  forth  in  the  findings  of  facts, 
for  the  puniose  of  manufactm-iug  and  fm-- 
nishing  electricity  for  hghting  purposes  to 
all  the  inhabitants  of  said  borough  who  may 
desire  to  use  the  same,  at  fixed  and  uniform 
i-ates  and  charges  established  by  ordinance 
of  said  borough,  the  said  plant  to  be  owned 
and  operated  by  the  said  borough,  constitutes 
a  public  service,  of  benefit  and  convenience 
to  ail  the  inhabitants  of  the  said  borough. 

"Fourth.  The  legislature  of  the  state  of 
renusylvania  has  authority  to  confer  the 
power  upon  municipalities  of  manuf.icturing 
and  distributing  electricity  for  the  purpose 


of  furnishing  light  to  theh*  Inhabitants  for 
private  use,  and  it  has  conferred  such  power 
upon  the  bf)rough  of  Chambersbm-g  by  act  of 
May  20,  1891. 

**•***• 

"Seventh.  The  liurgess  and  town  council  of 
the  borough  of  Chambersburg  have  a  lawful 
right  to  issue  tlie  bonds  of  the  borough  in  the 
sum  of  $10,000  for  the  pm-pose  of  raising- 
money  wherewith  to  erect  and  enlarge  the 
present  electric  light  plant  of  the  said  bor- 
ough for  the  purpose  of  supplying  electricity^ 
for  commercial  piu-poses. 

"Eighth.  The  said  biu-gess  and  town  coun- 
cil of  the  borough  of  Chambersburg  have  a 
lawful  right  to  enlarge  the  electric  light  plant 
of  the  said  borough,  to  issue  bonds  in  the 
sum  of  $10,000  to  provide  for  the  expense  In- 
curred, and  to  funiish  electricity  for  lighting 
purposes  for  private  use;  and  the  plaintiffs 
are  not  entitled  to  any  relief  against  said  acts- 
of  the  said  municipaUty.  It  is  therefore  rec- 
ommended that  the  bill  of  the  said  plaintiffs- 
be  dismissed  at  the  cost  of  the  said  plain- 
tiffs." 

"Opinion  and  Decree  of  Court. 

"The  purpose  of  this  bill  is  to  restrain  the 
iorough  of  Chambersburg  from  engaging  in 
the  manufacture  of  electricity  for  the  supply 
and  use  of  its  citizens.  The  effort  is  mad& 
on  two  distinct  grounds:  First,  that  the  act 
of  20th  May,  1891,  entitled  'An  act  to  author- 
ize any  borough  now  incorporated,  or  that 
may  hereafter  be  incorporated,  to  manufac- 
ture electricity  for  commercial  purposes  for 
the  use  of  the  inhabitants  of  said  borough, 
and  for  this  pm-pose  to  erect,  purchase  or 
condemn  electric  light  plants,'  etc.,  under 
wliicli  the  defendants  claim  to  exercise  this 
right,  is  unconstitutional,  and  therefore  void; 
second,  that  the  debt  proposed  to  be  incm-red 
by  the  borough,  or  which  it  will  necessarily 
incur,  for  the  purpose  aforesaid,  will  increase 
the  indebtedness  of  the  borough  to  an  amount 
in  excess  of  the  constitutional  limit  of  seven 
per  cent  of  the  assessed  valuation  of  the 
taxable  property.  In  both  contentions  the 
conclusious  of  the  master  are  adverse  ty  the 
plaintiffs,  and  they  except  thereto.  T'je  ex- 
ceptions which  relate  to  the  constitutionality 
of  the  act  of  20th  May,  1891,  are  oven-uled. 
It  is  sufficient  to  say,  in  this  connection,  that 
our  attention  has  not  been  called  to  rmy  excep- 
tion or  prohibition  in  the  constitution  with 
which  the  act  conflicts,  and  that  we  know  of 
none.  Nor  can  the  exceptious  to  the  master's 
conclusions  with  respect  to  the  indebtedness 
of  the  borough  be  sustained.  It  is  immate-  ; 
rial  whether  occupations  be  regardinl  as  taxa- 
ble property,  within  the  meaning  of  the  consti- 
tution, or  not  so  far  as  the  result  here  is  con- 
cerned. Ehminate  entirely  from  the  calcula-  ' 
tion  the  tax  assessed  upon  occupations,  and 
seven  per  centum  of  the  assessed  valuation  of  ■ 
what  remains  makes  a  total  which  exceeds, 
by  several  thousand  dollars,  the  debt  of  the 


142 


OWNERSHIP  OF  JIUNICIPAL  MONOPOLIES. 


borough  at  the  time  referred  to.  But  thero 
is  no  reason  why  this  tax  should  be  elimi- 
nated. Indeed,  there  is  express  authority  for 
Including  it  in  the  calculation.  This  very 
point  was  raised  and  decided  in  the  case  of 
Bro-R-n's  Appeal,  111  Pa.  St.  80,  2  Atl,  77, 
and  it  now  admits  of  no  controversy. 

"We  have  considered  the  exceptions  to  thr 
costs  taxed,  but  are  unable  to  see  any  gooii 
reason  why  the  bill  as  taxed  should  not  b 
allowed.  The  master's  work  was  protracto(^ 
a.nd  he  has  given  to  it  careful  study  and  at 
tention.  All  the  exceptions  to  the  report  are 
overruled,  and  it  is  now,  27th  January,  1893, 
ordered,  adjudged,  and  decreed  that  the  bill 
of  complaint  be  dismissed,  and  that  the  plain- 
tiffs, S.  M.  Linn,  H.  Gehr,  Aug.  Duncan,  Ben- 
jamin C.  Ross,  Frank  Lindsay,  Isaac  Stine, 
and  Tench  McDowell,  pay  all  the  costs  of  this 
proceeding." 

O.  C.  Bowers,  for  appellants.  J.  D.  Lud- 
'Wig,  for  appellee. 

PER  CURIAM.  This  biU  was  brought  to 
restrain  the  borough' of  Chambersbm-g  from 
manufacturing  and  supplying  electricity  for 
the  use  and  benefit  of  its  inhabitants  under 
the  provisions  of  the  act  of  May  20,  1891  (P. 
L.  90).  It  is  grounded  mainly  on  allegations 
which,  in  substance,  are  (1)  that  said  act  is 
unconstitutional,  and  (2)  that  the  debt,  which 
would  necessarily  be  incuiTCd  by  the  borough 
in  carrying  into  effect  its  proposed  undertak- 
ing, will  increase  its  indebtedness  to  an 
amount  in  excess  of  the  constitutional  limit 
of  7  per  centum  of  the  assessed  valuation  of 
taxable  property  within  the  corporate  limits. 
As  to  both  of  these  allegations  the  learned 
master's  findmgs  of  fact  and  legal  conclu- 
Bions  are  in  defendant's  favor.  The  first  five 
specifications  charge  error  in  overruling  the 
several  exceptions  to  the  master's  conclusions 
of  law  recited  therein,  respectively.  For  rea- 
sons sufficiently  stated  in  the  report  and  in 
the  opinion  of  the  learned  president  of  the 
common  pleas,  approving  the  same,  we  think 
there   was   no  error   in  refusing  to  sustain 


either  of  said  exceptions.  The  burden  was 
on  the  plaintiffs  to  prove  that  the  indebted- 
ness of  the  borough  would  be  necessarily  in- 
creased to  an  amoimt  exceeding  the  constitu- 
tional limit,  etc.  In  that  they  were  unsuc- 
cessful. While  the  legislative  intention  may 
not  be  as  clearly  and  happily  expressed  as  it 
might  have  been,  we  fail  to  discover  anything 
in  the  provisions  of  the  act  that  is  in  conflict 
with  the  constitution.  The  power  of  the 
legislature  to  authorize  municipal  corpora- 
tions to  supply  gas  and  water  for  municipal 
purposes,  and  for  the  use  and  benefit  of  such 
of  their  inhabitants  as  wish  to  use  and  are 
willing  to  pay  therefor  at  reasonable  rates, 
has  never  been  seriously  questioned.  In  view 
of  the  fact  that  electricity  is  so  rapidly  com- 
ing into  general  use  for  illuminating  streets, 
pubhc  and  private  buildings,  dwellings,  etc., 
why  should  there  be  any  doubt  as  to  the 
power  to  authorize  such  corporations  to  man- 
ufactm-e  and  supply  it  in  like  manner  as  ar- 
tificial gas  has  been  manufactured  and  sup- 
plied? It  is  a  mistake  to  assume  that  mu- 
nicipal coi-porations  should  not  keep  abreast 
with  the  progress  and  improvements  of  the 
age. 

The  subjects  of  complaint  in  the  remaining 
specifications  are  the  learned  judge's  refusal 
to  reduce  the  master's  fee,  and  the  decree 
dismissing  the  bill.  As  to  the  former,  he 
says:  "We  are  unable  to  see  any  good  reason 
why  the  bill  as  taxed  should  not  be  allowed. 
The  master's  work  was  protracted,  and  he 
has  given  it  careful  study  and  attention." 
In  the  absence  of  any  evidence  that  would 
justify  us  in  saying  that  the  fee  is  clearly 
excessive,  we  must  assume  that  the  compen- 
sation sanctioned  by  the  court  was  not  um-eor 
sonable.  The  decree  dismissing  the  bill  is  the 
logical  sequence  of  the  facts  and  legal  conclu- 
sions properly  drawn  therefrom.  The  ques- 
tions involved  are  so  well  considered  and  so 
satisfactorily  disposed  of  by  the  learned  mas- 
ter and  court  below,  that  fiuther  comment  is 
unnecessary.  Decree  affirmed,  and  appeal 
dismissed,  with  costs  to  be  paid  by  appel- 
lants. 


OWNERSHIP  OF  MUNICIPAL  MONOPOLIES. 


143 


CITY  OF  CRAWFORDSVILLE  r. 
BRADEN. 

(2S  N.  E.  849,  130  Ind.  149.) 

Supreme  Court  of  Indiana.     Oct.  27,  1S91. 

Appeal  from  circuit  court,  Montgomeiy 
•county;   E.  C.  Snyder,  Judf;e. 

Bill  by  Hector  S.  Braden  to  enjoin  tbe  city 
of  Crawfordsville  from  supplying  private  citi- 
zens with  electric  light.     From  a  decree  over-  j 
ruling  defendant's  demurrer,  and  allowing  a  : 
perpetual  injunction,  defendant  appeals.     Re- 
Tcrsed. 

W.  T.  Brush,  City  Atty.,  Davidson  &  West, 
and  Kennedy  &  Kennedy,  for  appellant 
€rane  &  Anderson,  for  api^ellee. 

McBRIDE,  J,  The  question  we  are  requir- 
ed to  decide  in  this  ease  is,  has  a  municipal 
corporation  in  this  state  the  power  to  erect, 
maintain,  and  operate  the  necessary  build- 
ings, maehinory,  and  appliances  to  light  its 
streets,  alleys,  and  other  public  places  with 
the  electric  light,  and  at  the  same  time,  and 
in  connection  therewith,  to  supply  electricity 
to  its  inhabitants  for  the  lighting  of  their 
residences  and  places  of  business.  Some  oth- 
er questions  are  incidentally  involved,  but  the 
principal  controvei-sy  is  as  above  stated. 
That  a  city  or  an  incorporated  town  may  buy 
and  operate  the  necessary  plant  and  machin- 
ery to  light  its  streets,  alleys,  and  other  pub- 
lic places  is  not  controverted  by  the  appellee; 
but  he  denies  the  right  to  furnish  the  light  to 
the  individual  for  his  private  use.  The  ques- 
tion is  argued  on  the  theory  that,  if  the  city 
has  such  power,  it  must  be  by  virtue  of  some 
express  legislative  grant,  and  is  not  among  j 
the  implied  powers  possessed  by  municipal 
coiporations;  that  statutes  conferring  powers 
upon  municipal  corporations,  especially  those 
involving  the  exercise  of  the  taxing  power, 
must  be  strictly  construed;  and  that,  strictly 
construed,  no  statute  confers  the  necessary 
authority.  The  purchase  of  the  necessary 
land,  machinery,  and  material,  and  the  erec- 
tion and  maintenance  of  such  a  plant,  does 
involve  the  exercise  of  the  taxing  power. 
The  necessary  funds  must  be  supplied  by  tax- 
ing the  tax-payers  of  the  municipality.  The 
only  statute  bearing  directly  upon  this  ques- 
tion is  the  act  of  March  3,  1883,  Elliott's 
Supp,  §  794  et  seq.  Section  794  contains  the 
following:  "That  the  common  coimcil  of  any 
city  in  this  state,  incoiirorated  either  imder 
the  general  act  for  the  incorporation  of  cities, 
or  under  a  special  charter,  and  the  board  of 
trustees  of  all  inconwrated  towns  in  this 
state,  shall  have  the  power  to  light  the  streets, 
alleys,  and  other  public  places  of  such  city 
and  town  with  the  electric  light  and  other 
form  of  light,  and  to  contract  with  any  indi- 
vidual or  corporation  for  lighting  such  streets, 
alleys,  and  other  public  places  with  the  elec- 
tric light  or  other  forms  of  light,  on  such 
terms,  and  for  such  times,  not  exceeding  10 
years,  as  may  be  agreed  upon."     Section  795 


provides  that,  for  the  purpose  of  effecting 
such  lighting,  the  common  council  of  a  city 
or  board  of  trustees  of  a  town  may  provide, 
by  resolution  or  ordinance,  for  the  erection 
and  maintenance  in  the  streets,  etc.,  of  the 
necessary  poles  and  appliances.  Section  790 
authorizes  granting  to  any  person  or  corpora- 
tion the  right  to  erect  and  maintain  in  the 
streets,  etc.,  the  necessary  poles  and  appli- 
ances for  the  purpose  of  supplying  the  elec- 
tric or  other  light  to  the  inhabitants  of  the 
corporation.  Section  797  validates  conti'acts 
of  a  certain  character,  made  before  the  en- 
actment of  the  statute;  and  section  798  pro- 
vides for  the  appropriation  of  lands  and  right 
of  way  liy  corporations  engaged  in  the  busi- 
ness of  lighting  cities  or  towns,  "or  the  pubUc 
or  private  places  of  their  inliabitants,  with 
the  electric  light,"  etc.  It  w-ill  be  obsen-ed 
that,  while  section  79G  provides  for  granting 
to  third  persons  the  right  to  furnish  the  light 
to  the  inhabitants,  it  does  not,  in  terms,  give 
any  such  power  to  the  corporation.  It  will, 
therefore,  be  necessaiy  for  us  to  inquire  if 
the  corporation  possesses  such  power  inde- 
pendently of  the  statute,  or,  if  not,  if  the  stat- 
ute is  susceptible  of  a  fair  construction,  in  ac- 
cordance with  established  rules,  which  clothes 
the  corporation  with  such  power.  In  the 
case  of  Rushville  Gas  Co.  v.  City  of  Rushvillo, 
121  Ind.  206,  23  N.  E.  72,  this  statute  was  con- 
sidered, in  so  far  as  relates  to  the  right  of  the 
city  to  buy  and  operate  the  necessary  plant 
and  machinery  to  light  its  streets,  alleys,  and 
other  public  places,  and  it  was  held  -that  the 
statute  was  sufficient  to  confer  that  power. 
In  that  case  the  court,  after  announcing  the 
conclusion  above  stated,  used  the  following 
langiiage:  "If  there  were  any  doubt  as  to 
the  meaning  of  the  act,  it  would  be  removed 
by  considering  it,  as  it  is  our  duty  to  do,  in 
connection  with  the  general  act  for  the  in- 
corporation of  cities;  for  that  act  confers 
very  comprehensive  powers  upon  municipal 
corporations  as  respects  streets  and  public 
works,  and  contains  many  broad  general 
clauses  akin  to  those  w'hich  Judge  Dillon 
designates  as  'general  welfare'  clauses.  Our 
own  decisions  fully  recognize  the  doctrine 
that  mimicipal  corporations  do  possess,  un- 
der the  general  act,  authority  as  broad  as  that 
here  exercised,  and  the  operation  of  that  act 
is  certainly  not  limited  or  restricted  by  the 
act  of  1883."  The  eminent  author  above  re- 
ferred to  thus  defines  the  powers  of  municipal 
corporations:  "It  is  a  general  and  undis- 
putctl  proposition  of  law  that  a  municipal  cor- 
poration possesses  and  can  exercise  the  fol-  ' 
lowing  powers,  and  no  others:  First,  those 
granted  in  express  words;  second,  those  nee-  ,' 
essarily  or  fairly  implied  in  or  incident  to  the 
powers  expressly  granted;  third,  those  essen-  / 
tial  to  the  declared  objects  and  purposes  of 
the  corporation,  not  simply  convenient,  but  | 
indispensable.  Any  fair,  reasonable  doiib^ 
concerning  the  existence  of  the  power  is  r"^  I 
solved  by  the  courts  against  the  coiporatiop  ' 
and  the  power  is  denied.     Of  every  municipal    f 


144 


OWNBRSITIP  OF  MUNICIPAL  MONOPOLIES. 


\  corporation,  the  charter  or  stntuto  by  which 
it  is  created  is  its  organic  act.     Neither  the 

1  corporation  nor  its  oflRcers  can  do  any  act, 
nor  malve  any  contract,  or  incur  any  liability, 

\  not  autliorized  thereby,   or  by  some  legisla- 

'  tire  act  applicable  thereto.     All  acts  beyond 

\  the  scope  of  the  ix)wers  gi-auted  are  void." 
Dill.  Miin.  Corp,  (4th  Ed.)  §  SO.  Judge  Dil- 
lon,  however,    quotes   approvingly  from   tlie 

I  supreme  court  of  Connecticut  as  follows,  (sec- 
tion 90,  p.  147:)  "All  corporations,  whether 
public  or  private,   derive  their  powers  from 

I  legislative  grant,  and  can  do  no  act  for  which 
authority  is  not  expressly  given  or  may  not 
be  reasonably  inferred.  But  if  we  were  to 
say  that  they  can  do  nothing  for  which  a 
warrant  cannot  be  found  in  the  language  of 
■  their  chartei-s,  we  should  deny  them  in  some 
cases  tlie  power  of  self-preservation,  as  well 
as  many  of  the  means  necessary  to  effect  the 
essential  objects  of  their  incorporation.  And 
therefore  it  has  long  been  an  established  prin- 
ciple in  the  law  of  corporations  that  they 
may  exercise  all  the  powers,  within  the  fair 
intent  and  purpose  of  their  creation,  which 
are  reasonably  proper  to  give  effect  to  pow- 
ers expressly  granted.  In  doing  this,  they 
I  must  (unless  restricted  in  this  respect)  have 
a  choice  of  means  adapted  to  ends,  and  are 
not  to  be  confined  to  any  one  mode  of  opei*a- 
tion."  City  of  Bridgeport  v.  Housatonuc 
Railroad  Co.,  15  Conn.  475-501.  This  princi- 
ple has  been  repeatedly  recognized  by  this 
court.  Thus  in  Smith  v.  City  of  Madison,  7 
I  ml.  8G,  it  is  said:  "The  strictness,  then,  to 
be  observed  in  giving  construction  to  munici- 
pal charters,  should  be  such  as  to  carry  into 
effect  every  power  clearly  intended  to  be  con- 
ferred on  the  mimicipality,  and  every  power 
necessarily  implied,  in  order  to  the  complete 
exercise  of  the  powers  granted."  Again,  in 
Kyle  V.  Malin,  8  Ind.  34^37,  the  court  said: 
"The  action  of  municipal  corporations  is  to 
be  held  strictly  within  the  limits  prescribed 
by  the  statute.  Within  these  limits,  they  are 
to  be  favored  by  the  courts'.  Powers  ex- 
pressly granted  or  necessarily  implied  are  not 
to  be  defeated  or  impaired  by  a  stringent  con- 
struction." 

Among  the  implied  powers  possessed  by 
municipal  corporations  in  this  state  are  those 
gi-ouped  under  the  somewhat  comi)rehensive 
title  of  "police  powers,"— a  power  Avhich  it  is 
difficult  eitlier  to  precisely  define  or  limit;  a 
power  which  authorizes  the  municipality  in 
certain  cases  to  place  restrictions  upon  the 
power  of  the  individual,  both  in  respect  to  his 
personal  conduct  and  his  property,  and  also 
furnishes  the  only  authority  for  doing  many 
things  not  restrictive  in  their  character,  the 
teridency  of  which  is  to  promote  the  comfort, 
health,  convenience,  good  order,  and  general 
welfare  of  the  inhaJ)itants.  The  police  pow- 
er primarily  inheres  in  the  state;  but  the  leg- 
islature may,  and  in  common  practice  does, 
delegate  a  large  measure  of  it  to  municipal 
corporations.  The  power  thus  delegated  may 
be  conferred  in  express  terms,  or  it  may  be 


inferred  from  the  mere  fact  of  the  creation 
of  the  corporation.  The  so-called  inferred  or 
inherent  police  powers  of  such  corporations 
are  as  much  delegated  powers  as  are  those 
conferred  in  express  terms,  the  inference  of 
their  delegation  growing  out  of  the  fact  of 
the  creation  of  the  corporation,  and  the  ad- 
ditional fact  that  the  corporation  can  only 
fully  accomplish  the  objects  of  its  creation  by 
exercising  such  powers.  Special  charters,  as 
well  as  general  statutes  for  the  incorporation 
of  cities  and  towns,  usually  contain  a  specific 
enumeration  of  powers  granted  to,  and  which 
may  be  exercised  by,  such  corporations.  In 
many  cases,  the  powers  thus  enumerated  are 
such  as  would  be  implied  by  the  mere  fact  of 
the  incorporation.  Where  powers  are  thus 
enumerated  in  a  statute  which  would  belong 
to  the  corporation  without  specific  enumera- 
tion, the  specific  statute  is  to  be  regarded, 
not  as  the  source  of  the  power,  but  as  merely 
declaratoiy  of  a  pre-existing  power,  or,  rath- 
er, of  a  power  which  is  inherent  in  the  very 
nature  of  a  municipal  coiiioration,  and  which 
is  essential  to  enable  it  to  accomplish  the  end 
for  which  it  is  created.  And  the  enumeration 
of  powers,  including  a  portion  of  those  usual- 
ly implied,  does  not  necessarily  operate  as  a 
limitation  of  coi-porate  powers,  excluding 
those  not  enumerated.  Clark  v.  City  of  South 
Bend,  S5  Ind.  276;  Bank  v.  Sarlls  (Ind.  Sup.) 
28  N.  E.  434. 

The  coi-poration,  notwithstanding  such 
enumeration,  still  possesses  all  of  the  usu- 
ally implied  powers,  unless  the  intent  to  ex- 
clude them  is  apparent  either  from  express 
declaration,  or  by  reason  of  inconsistency 
between  the  specific  powers  conferred  and 
those  which  would  otherwise  be  implied. 
The  legislature  can  unquestionably  take  from 
municipal  corporations  powers  which  would 
inferentially  be  conferred  upon  them  by  their 
creation,  or  it  can  restrict  the  exercise  of 
such  powers,  or  in  any  manner  control  their 
exercise;  ttie  legislative  will  being  as  to  such 
matters  supreme.  Among  the  implied  pow- 
ers possessed  by  municipal  corporations  is 
the  power  to  enact  and  enforce  reasonable 
by-laws  and  ordinances  for  the  protection  of 
health,  life,  and  propei'ty.  Thus,  in  tliis  state, 
it  has  been  held  that,  independently  of  any 
statutory  authority  such  corporations  joossess 
the  inherent  power  to  enact  ordinances  for 
the  protection  of  the  property  of  its  citizens 
against  fire.  Baumgartner  v.  Hasty,  100 
Ind.  575;  Bank  v.  Sarlls,  supra;  Hasty  v. 
City  of  Huntington,  105  Ind.  540.  5  N.  E.  559; 
Clark  V.  City  of  South  Bend,  85  Ind.  276;  Cor- 
poration ot  Bluffton  V.  Studabaker,  ICH)  Ind. 
129,  6  N.  E.  1.  This  power  will  not  only  au- 
thorize the  enactment  and  enforcement  of 
ordinances  establishing  fire  limits,  regulating 
building  and  repairing  buildings,  and  regu- 
lating the  storage  and  traffic  in  inflammable 
or  explosive  substances,  but  the  purchase  of 
apparatus  for  extinguishing  fires  and  furnish- 
ing a  supply  of  water.  Corporation  of  Bhiff- 
ton   v.    Studabaker,    supra.     In    tlic   cisi'    of 


OWNERSHIP  OF  irUNICIPAL  MONOPOLIES. 


145 


City  of  St.  Paul  v.  Laidler,  2  Minn.  190  (Gil. 
159),  the  supreme  court  of  Minnesota,  after 
holding  that  a  municipal  corporation  is  "a 
creature  of  the  law,  and  in  the  exercise  of  its 
authority  cannot  exceed  the  limits  therein 
prescribed,"  says:  "It  Is  a  body  of  special 
and  limited  jurisdiction;  its  powers  cannot 
be  extended  by  intendment  or  implication, 
but  must  be  confined  within  the  express  grant 
of  the  legislature;"  and  then  says  further: 
"Incidental  to  the  ordinary  powers  of  a  mu- 
nicipal corporation,  and  necessary  to  a  proper 
exercise  of  its  functions,  is  the  power  of  en- 
acting sanitaiy  regulations  for  the  preserva- 
tion of  the  lives  and  health  of  those  residing 
within  its  corporate  limits."  If  this  state- 
ment is  correct,  it  follows  that  to  concede 
to  municipal  corporations  the  possession  of 
such  powers  does  not  involve  any  extension, 
either  by  intendment  or  Implication,  of  the 
powers  expressly  conferred,  by  statute;  but 
that,  by  the  act  authorizing  the  organization 
of  the  corporation,  the  legislature  expressly 
delegates  to  the  municipality  the  power  to 
take  such  steps  as  are  necessary  to  preserve 
the  health  and  safety  (and  we  will  add  the 
property)  of  its  inhabitants.  The  inference 
of  the  delegation  of  such  powers  follows  in- 
evitably and  irresistibly,  because  their  exer- 
cise is  necessary  to  the  accomplishment  of 
the  objects  of  the  incorporation.  When  a  mu- 
nicipal corporation  attempts  to  exercise  any 
of  the  powers  thus  implied,  or  inferentially 
conferred,  it  is  within  the  rule  of  Kyle  v. 
Malin,  supra,  as  fully  as  it  is  when  attempt- 
ing to  exercise  those  powers  the  warrant  for 
which  is  foimd  in  the  express  letter  of  its 
organic  law.  It  is  to  be  favored  by  the 
courts,  and  such  powers  are  not  to  be  defeat- 
ed or  impaired  by  a  stringent  construction. 
It  is,  of  course,  important  and  necessary  to 
know  in  each  case  that  the  power  claimed  is 
in  fact  included  in  the  implied  powers  of  the 
corporation. 

There  can  be  little  or  no  doubt  that  the 
power  to  light  the  streets  and  public  places 
of  a  city  is  one  of  its  implied  and  inherent 
powers,  as  being  necessai-y  to  properly  pro- 
tect the  lives  and  property  of  its  inhabitants, 
and  as  a  check  on  immorality.  This  is  for- 
cibly set  forth  by  Judge  Dillon  in  his  work 
on  Municipal  Corporations,  as  follows:  "In 
a  most  important  particular,  however,  Home 
suffers  by  comparison  with  modem  cities. 
Its  public  places  were  not  lighted.  All  busi- 
ness closed  with  the  daylight.  The  streets 
at  night  were  dangerous.  Property  was  in- 
secure. 2so  attempt  at  public  illumination 
was  made.  The  idea  does  not  seem  to  have 
occurred  to  them.  Persons  who  ventured 
abroad  on  dark  nights  were  dimly  hghted  by 
lanterns  and  torches.  *  *  *  No  more  forci- 
ble illustration  of  the  necessity  and  advan- 
tages of  lighting  a  city  can  be  given  than  the 
pictures  drawn  by  Lanciani  and  Macaulay  of 
the  state  of  a  great  city  buried  in  the  dark- 
ness of  night;  and  they  show  how  clearly  the 
power  to  provide  for  this  is  essentially  and 
ABB.CORP.— 10 


peculiarly  one  pertaining  to  municipal  rule 
and  regulation.  Nor  are  these  studies,  and 
the  facts  that  they  reveal,  without  practical 
value  to  the  jurist.  They  demonstrate  that  a 
large  and  dense  collection  of  human  beings, 
occupying  a  limited  area,  have  needs  peculiar 
to  themselves,  which  create  the  necessity  for 
municipal  or  local  government  and  regula- 
tion, and  this,  in  its  turn,  the  necessity  for 
corporate  organization.  The  body  thus  or- 
ganized, as  it  has  duties,  so  it  acquires  rights 
peculiar  to  itself,  as  distinguished  from  the 
nation  or  state  at  large."  Dill.  Mun.  Corp. 
(4th  Ed.)  §  3a.  While  Judge  Dillon's  remarks 
have,  of  course,  special  reference  to  great 
cities,  the  difference  in  that  respect  between 
the  greater  and  the  minor  municipal  corpora- 
tions is  a  difference  in  degree,  and  not  in 
kind.  Wherever  men  herd  together,  in  vil- 
lages, towns,  or  cities,  will  be  found  more  or 
less  of  the  lawless  and  viciotis,  and  crime  and 
vice  are  plants  which  flourish  best  in  the 
darkness.  So  far  as  lighting  the  streets,  al- 
leys, and  ptibhc  places  of  a  municipal  corpo- 
ration is  concerned,  we  think  that,  independ- 
ently of  aiiy  statutory  power,  the  municipal 
authorities  have  inherent  power  to  provide 
for  lighting  them.  If  so,  unless  their  discre- 
tion is  controlled  by  some  express  statutory 
restriction,  they  may,  in  their  discretion,  pro- 
vide that  form  of  light  which  is  best  suited 
to  the  wants  and  the  financial  condition  of 
the  corporation.  It  is  well  settled  that  the 
discretion  of  municipal  corporations,  within 
the  sphere  of  their  powers,  is  not  stibject  to 
judicial  control,  except  in  cases  where  fraud 
is  shown,  or  where  the  power  or  discretion  is 
being  grossly  abused,  to  the  oppression  of  the 
citizen.  Valparaiso  v.  Gardner,  97  Ind.  1; 
15  Am.  &  Eng.  Euc.  Law,  lOiG,  and  authori- 
ties there  cited.  We  can  see  no  good  reason 
why  they  may  not  also,  without  statutory  au- 
thority, provide  and  maintain  the  necessary 
plant  to  generate  and  supply  the  electricity 
reqtiired.  Possessing  authority  to  do  the 
lighting,  that  power  carries  with  it  inciden- 
tally the  further  power  to  procure  or  furnish 
whatever  is  necessary  for  the  production  and 
dissemination  of  the  fight.  The  only  author- 
ity cited  which  holds  a  contrary  doctrine  is 
that  of  Spaulding  v.  Inhabitants  (Mass.)  26 
N.  E.  421.  We  are,  however,  unable  to  rec- 
ognize the  validity  of  the  reasoning  in  that 
case.  We  are  unable  to  see  the  analogj'  be- 
tween the  city  of  Boston,  because  authorized 
to  light  its  streets,  engaging  in  whale  fishery 
to  procure  oil  for  that  purpose,  or  the  other 
supposed  cases,  and  the  generation  and  sup- 
ply of  electricity.  Electricity  is  not  a  com- 
modity which  can  be  bought  in  the  markets, 
and  transported  from  place  to  place  like  oil. 
We  take  judicial  notice  of  the  laws  of  nature 
and  of  nature's  powers  and  forces,  and  there- 
fore take  judicial  notice  of  that  which  is 
known  as  "electricity,"  and  of  its  properties; 
not,  of  course,  of  the  various  methods  of  gen- 
erating and  transmitting  or  using  it,  but  of 
the   thing  itself,   and  of  its  nature.     As  in 


146 


OWNERSHIP  OF  MUNICIPAL  MONOPOLIES. 


many  other  cases,  here  the  judicial  presump- 
tion outruns  the  fact,  and  we  are  supposed 
to  know  and  to  take  judicial  notice  of  more 
than  we  can  in  fact  know  in  the  present  state 
of  scientific  knowledge.  We  must  know, 
however,  that  it  cannot  be  generated  and 
transported  from  place  to  place  as  we  can 
procure  and  ti-ansport  oil,  clothing,  etc.,  and 
that  it  can  only  be  conveyed  from  the  place 
where  it  is  generated  to  where  it  is  needed 
for  lighting  the  streets,  or  to  the  numerous 
inhabitants  of  a  city,  so  as  to  enable  them  to 
use  it  as  a  general  illuminant  by  invoking  and 
exercising  the  power  of  eminent  domain. 

The  corporation  possessing,  as  it  does,  the 
power  to  generate  and  distribute  throughout 
its  limits  electricity  for  the  lighting  of  its 
streets  and  other  public  places,  we  can  see  no 
good  reason  why  it  may  not  also  at  the  same 
time  furnish  it  to  the  inhabitants  to  light 
their  residences  and  places  of  business.  To 
do  so  is,  in  our  opinion,  a  legitimate  exercise 
of  the  poUce  power  for  the  preservation  of 
property  and  health.  It  is  averred  in  the 
complaint  that  the  light  which  the  city  pro- 
poses to  furnish  for  individual  use  is  the  in- 
candescent light.  Here,  again,  is  a  fact  of 
which  we  are  authorized  to  take  judicial 
knowledge.  A  light  thus  produced  is  safer 
to  property  and  more  conducive  to  health 
than  the  ordinary  light.  Produced  by  the 
heating  of  a  filament  of  carbon  to  the  point 
of  incandescence  in  a  vacuum,  there  is  noth- 
ing to  set  property  on  fire,  or  to  consume  the 
oxygen  in  the  surrounding  air,  and  thus  ren- 
der it  less  capable  of  sustaining  life  and  pre- 
serving health.  But  little  authority  has  been 
cited  bearing  on  the  precise  question,  and  we 
have  been  able  to  find  but  little.  The  case 
of  Mauldin  v.  Council  (S.  C.)  11  S.  E.  434,  has 
been  cited  by  the  appellee.  That  was,  like 
this,  a  suit  by  tax-payers  of  the  city  of  Green- 
ville to  restrain  the  city  council  from  pur- 
chasing and  operating  an  electric  light  plant 
to  light  the  streets  and  public  buildings  of 
the  city,  and  from  using  it  for  lighting  pri- 
vate residences.  In  that  case  the  court  says: 
"The  city  has  the  express  power  to  own 
property,  and  the  implied  power  to  light  the 
city.  *  *  *  Considering  that  some  discre- 
tion as  to  the  mode  and  manner  should  be 
allowed  the  municipality  in  carrying  out  the 
conceded  power  to  light  the  streets  of  the 
city,  we  hold  that  the  purchase  of  the  plant 
was  not  ultra  vires  and  void,  so  far  as  it  was 
designed  to  produce  electricity  suitable  for 
and  used  in  lighting  the  streets  and  public 
buildings  of  the  city."  The  court,  however, 
denied  the  right  to  furnish  the  light  to  the 
individual  citizen  on  the  ground  that  to  do  so 
would  be  entering  into  private  business,  out- 
side of  the  scope  of  the  city  government. 
The  court  refers  to  the  lack  of  authority  on 
the  precise  question,  and  that  it  is  largely  a 
question  of  the  first  impression,  without  au- 
thority. The  case  of  Thompson-Houston 
Electric  Co.  v.  City  of  Newton,  42  Fed.  723, 
was  a  suit  to  enjoin  the  city  of  Newton  from 


purchasing  and  operating  an  electric  light 
plant,  and  furnishing  the  light  to  the  inhab- 
itants. The  only  statutory  authority  claimed 
by  the  city  is  as  follows:  "To  establish  and 
maintain  gas-works  or  electric  light  plants, 
with  all  the  necessary  poles,  wires,  burners, 
and  other  requisites  of  said  gas-works  or 
electric  light  plants."  Acts  22d  Gen.  Assem. 
Iowa,  p.  16.  It  will  be  observed  that  this 
statute  does  not  in  terms  confer  any  power 
not,  in  our  opinion,  as  above  stated,  included 
among  the  implied  powers  of  municipal  cor- 
porations. The  court  says:  "It  is  also  urged  \ 
that  the  city  has  only  the  authority  to  erect 
an  electric  plant  for  the  purpose  of  lighting 
the  streets  and  public  places  of  the  city,  and 
is  not  authorized  to  furnish  light  for  use  in 
the  houses  and  stores  of  its  citizens.  *  *  * 
It  has  been  the  vmiform  rule  that  a  city,  in 
erecting  gas-works  or  water-works,  is  not 
limited  to  furnishing  gas  or  water  for  use 
only  upon  the  streets  and  other  public  places 
of  the  city,  but  may  furnish  the  same  for  pri- 
vate use;  and  the  statutes  of  Iowa  now  place 
electric  light  plants  in  the  same  category." 
The  case  of  Smith  v.  Mayor,  etc.,  88  Tenn, 
464,  12  S.  W.  924,  is  also  in  point  as  to  the 
principle  involved.  The  charter  of  the  city 
of  Nashville  contained  the  following  in  its 
enumeration  of  the  powers  conferred  upon 
the  city:  "To  provide  the  city  with  water 
by  water- works,  within  or  beyond  the  bound- 
aries of  the  city,  and  to  provide  for  the  pre- 
vention and  extinguishment  of  fires,  and  or- 
ganize and  establish  fire  companies."  Act- 
ing under  the  authority  thus  conferred,  the 
city  estabUshed  water-works,  and,  in  addi- 
tion to  making  provision  for  the  extinguish- 
ment of  fires,  it  furnished  water  to  the  citi- 
zens. The  right  to  do  this  was  disputed,  and 
formed  the  principal  subject  of  controversy. 
The  court  said:  "Nothing  should  be  of  great- 
er concern  to  a  municipal  corporation  than 
the  preservation  of  the  good  health  of  the 
inhabitants.  Nothing  can  be  more  conducive 
to  that  end  than  a  regular  and  suttieient  sup- 
ply of  wholesome  water,  which  common  ob- 
servation teaches  all  can  be  furnished  in  pop- 
ulous cities  only  through  the  instrumeutahty 
of  well-equipped  water-works.  Hence  for  a 
city  to  meet  such  a  demand  is  to  perform  a 
public  act,  and  confer  a  public  blessing.  It 
is  not  strictly  a  governmental  or  municipal 
function,  which  every  municipality  is  under 
obligations  to  assume  and  perform,  but  it  is 
very  closely  akin  to  it,  and  should  always  be 
recognized  as  within  the  scope  of  its  author- 
ity, unless  excluded  by  some  positive  law. 
*  *  *  It  is  the  doing  of  an  act  for  the  pub- 
lic weal,— a  lending  of  corporate  property  to 
a  public  use.  *  *  *  It  cannot  be  held  that 
the  city  in  doing  so  is  engaging  in  a  private 
enterprise,  or  performing  a  municipal  func- 
tion for  a  private  end."  While  the  author- 
ities on  the  precise  question  are  meager,  we 
think  the  weight  of  authority,  as  well  as  of 
reason,  tends  to  sustain  the  right  of  the  mu- 
nicipality through  its  pvdpor  officers,  acting 


OWNERSHIP  OF  MUNICIPAL  MONOPOLIES. 


147 


In  the  exercise  of  a  sound  discretion,  to  fur- 
nish light  as  well  as  water  to  its  inhabitants, 
not  only  in  its  public  places,  but  in  their  pri- 
vate houses  and  places  of  business. 

An  additional  question  is  presented  and  dis- 
cussed. It  is  shown  by  the  averments  of  the 
complaint  that  such  action  as  the  city  au- 
thorities have  taken,  and  are  proposing  to 
take,  is  by  virtue  of  a  resolution  adopted  by 
the  city  council,  and  not  by  virtue  of  an  or- 
dinance, and  that,  if  the  city  is  authorized  to 
erect  and  operate  an  electric  light  plant,  it 
can  only  do  so  by  virtue  of  an  ordinance  duly 
enacted.     In  so  far  as  the  city  derives  any 


authority  from  the  act  of  March  3,  1883  (ElU- 
ott's  Supp.  §  794  et  seq),  it  is  authorized  to 
act  either  by  resolution  or  ordinance;  but 
aside  from  the  statute,  where  the  city  coun- 
cil has  power  to  act  in  a  given  case,  and  its 
charter  does  not  prescribe  the  manner  of  ac- 
tion, it  may  accomplish  its  purpose  by  resolu- 
tion as  well  as  by  ordinance.  Note  to  Rob- 
inson V.  Mayor,  etc.,  34  Am.  Dec.  632,  and  au- 
thorities there  cited.  The  court  erred  in 
overruling  the  demurrer  to  the  complaint. 
The  cause  is  reversed,  at  the  costs  of  the  ap- 
pellee, with  instructions  to  the  circuit  court 
to  sustain  the  demurrer. 


148 


OWNERSHIP  OF  MUNICIPAL  MONOPOLIES. 


In  re  BOROUGH  OF  MILLVALB. 

Aroeal  of  HOWARD  et  al, 

(29  Atl.  641,  162  Pa.  St.  374.) 

Supreme  Court  of  Pennsylvania.     July  11,  1894. 

Appeal  from  court  of  quarter  sessions,  Al- 
legheny county. 

Action  by  James  Howard  and  others,  tax- 
payers, to  enjoin  the  burgess  and  town  coun- 
cil of  the  borough  of  Millvale  from  issuing 
bonds  for  an  increased  indebtedness.  The 
complaint  was  dismissed,  and  plaintiffs  ap- 
peal.    Affirmed. 

H.  I.  Riley  and  Lyon,  McKee  &  Sanderson, 
for  appellants.     R.  H.  Jackson,  for  appellee. 

GREEN,  J.  A  careful  examination  of  the 
complaint  in  this  case,  and  of  the  answer 
and  the  affidavits  submitted  on  both  sides, 
satisfies  us  that  the  learned  comt  below  was 
right  in  the  conclusions  reached  in  the  opin- 
ion filed. /^J^^e  can  scarcely  doubt  that  the 
proceedings  by  the  burgess  and  councils, 
having  in  view  the  erection  of  new  works, 
were  animated  and  conducted  with  an  un- 
seemly desire  to  injure  the  Bennett  Water 
Company,  to  destroy  the  value  of  its  fran- 
chises, to  disregard  the  terms  of  the  solemn 
contract  made  by  the  borough  with  that  com- 
pany, and  with  an  entire  willingness  to 
evade  the  teachings  of  ordinary  morality, 
business  integi'ity,  and  common  honesty.'^ 
Throughout  the  entire  record,  there  cannot 
be  found  the  least  evidence  of  any  fault  on 
the  part  of  the  water  company,  either  in  the 
structure  of  their  works,  or  in  the  efficiency 
of  their  service.  When,  at  the  meeting  of 
councils  on  August  16,  1893,  an  envelope  re- 
spectfully addressed  to  the  burgess  and  town 
council  of  the  borough  of  Millvale  was  re- 
ceived by  that  body,  and  a  motion  was  made 
to  open  and  read  it,  which  the  chairman, 
Eades,  pronounced  to  be  out  of  order  upon 
a  mere  subterfuge,  a  deliberate  insult  was 
added  to  the  other  acts  of  oppression  and  in- 
justice of  which  the  burgess  and  councils 
had  been  guilty.  The  envelope  was  not 
opened  until  September  6th  following, — a  pe- 
riod of  21  days,— and  when  it  was  read  it 
was  found  to  contain  a  proposition  from  the 
water  company  to  soil  their  works  for  $61,- 
500.  At  the  same  meeting  of  Au.gust  16th, 
the  councils,  with  undue  haste,  voted  to 
award  the  contract  for  the  new  works  to 
Chanley  Bros.  &  Co.,  who  were  declared  to 
be  the  lowest  and  best  bidders,  and  when  the 
contract  was  reduced  to  writing,  and  execut- 
ed, the  price  to  be  paid  was  .$63,500,  exclu- 
sive of  the  cost  of  necessary  land  to  be  ob- 
tained. It  is  not  difficult  to  draw  .the  in- 
ference that  the  proposition  of  the  Bennett 
Water  Company  was  refused  si  hearing  be- 
cause it  was  feared  that  it  might  contain  a 
lower  bid  than  that  at  which  the  contract 


was  awarded.  In  such  circumstances  as 
these,  and  others  of  a  kindred  character,  it 
is  much  to  be  regretted  that  "we  can  discover 
no  way  of  arresting  such  proceedings.// The  ) 
difficulty  arises  from  the  character  of  the  de-  I 
fendant  corporation.  It  is  a  municipal  body,  I 
clothed  with  the  power  of  legislation,  to  a  ' 
limited  extent;  and,  when  within  the  limits 
of  its  authority,  its  acts  are  obligatory,  not 
only  upon  the  mimicipal  body  in  its  organ- 
ized capacity,  but  upon  the  citizens  who 
dwell  within  its  territorial  confines.  In  the 
very  important  contract  which  was  made  be- 
tween it  and  the  water  company,  there  was 
no  restriction  placed  upon  its  right  to  erect 
water  works  in  the  future.  That  is  a  right 
given  to  all  such  bodies  by  law,  and  they, 
may  exercise  it,  no  matter  at  what  cost  to 
private  companies,  whose  franchises  are  held 
subject  to  such  right.  This  subject  was 
fully  considered  by  this  court  in  the  case  of 
Lehigh  Water  Co.'s  Appeal,  102  Pa.  St.  515, 
where  we  held  that  the  right  of  a  borough  to 
erect  waterworks  was  entirely  independent 
of  the  right  of  private  corporations  to  erect 
similar  works,  and  that  it  was  a  matter  of  no 
consequence  that  such  erection  injured  pri- 
vate franchises  of  the  same  character. 

It  is  claimed  for  the  appellants  in  this  case 
that  in  incurring  a  debt  of  $80,000  in  addi- 
tion to  a  pre-existing  debt  of  $23,000  and  up- 
wards, with  a  tax  levy  of  10  mills  for  or- 
dinary purposes,  and  an  additional  tax  of 
3%  mills,  which  would  be  necessary  to 
pay  the  interest  and  principal  of  the  new 
debt,  the  legal  limit  of  possible  indebtedness 
would  be  exceeded.  The  7  per  cent,  limit 
would  not  be  exceeded.  This  is  admitted. 
The  special,  local  act  of  March  12,  1873  (P. 
L.  263),  was  simply  a  grant  of  power  to  levy 
a  tax  of  10  mills  for  general  borough  pur- 
poses. There  is  nothing  in  that  act  to  pre- 
vent the  levying  of  an  increased  tax  to  pay 
the  interest  or  principal  of  a  debt  which  may 
lawfully  be  created  in  the  futiure.  The  pow 
er  to  erect  waterworks  necessarily  includes 
the  power  to  raise  the  money  to  pay  for  them, 
and  as  increased  indebtedness,  within  the 
limit  of  7  per  cent,  may  be  created  under 
the  constitution  of  1874,  we  do  not  under- 
stand how  such  increase  can  be  regarded  as 
invalidated  by  either  the  constitutional  limit 
of  7  per  cent,  or  by  the  act  of  April  20.  1874 
(P.  L.  65).  The  very  object  of  the  act  of 
April  20th  was  to  enable  any  county,  city, 
borough,  or  other  municipality  to  increase 
the  amount  of  its  existing  indebtedness.  The 
second  section  of  the  act  enables  the  mmiici- 
pal  authorities  to  increase  the  debt  to  the 
extent  of  2  per  cent,  of  the  assessed  value  of 
the  taxable  property  therein,  and  the  third 
section  confers  the  power  to  increase  beyond 
2  per  cent.,  but  not  exceeding  a  total  indebt- 
edness of  7  per  cent,  by  means  of  an  elec- 
tion conducted  with  certain  prescribed  for- 
malities. The  latter  method  was  pursued  in 
this  case,  and  there  ai'e  no  objections  made 


^-j^j^^fXJ^^  T^^*-"^**;:*^^*  •-'*►•' 


/ 


OWNERSHIP  OF  MUNICIPAL  MONOPOLIES. 


149 


to  the  validity  of  the  increase  on  the  ground 
that  any  of  the  prescribed  formalities  were 
not  observed^ 

It  is  contended  for  the  appellant  that  an 
absolute  limit  of  the  taxing  power  of  the 
borough  was  lixed  by  the  Act  of  March  12, 
1873,  supra,  at  10  mills  upon  the  assessed 
valuation  of  the  properly  of  the  borough; 
and  as  this  act  was  not  repealed  by  the  act 
of  April  20,  1S74,  that  limitation  still  remains, 
and  therefore  avoids  the  present  proposed 
increase.  We  cannot  possibly  assent  to  such 
contention.  We  regard  this  very  proposi- 
tion as  denied  by  the  decision  of  this  court 
in  Appeal  of  City  of  Wilkes-Barre,  116  Pa. 
St  3G0,  9  Atl.  308,  where  the  same  conten- 
tion was  made.  We  there  went  further  than 
is  required  in  this  case,  and  held  that  the 
taxes  authorized  to  be  levied  and  collected 
might  be  applied  to  the  payment  of  indebted- 
ness conti'aetcd,  as  well  previously  as  subse- 
quently to  the  constitution  of  1S74.  That 
is  not  the  case  here,  where  the  only  allega- 
tion is  that  an  annual  assessment  of  3^3 
mills  tax  will  be  necessary  to  pay  8  per 
cent,  of  the  increased  debt  of  ?80,000.  The 
answer  denies  that  it  will  be  necessary  to 
levy  so  large  a  tax  as  that  for  that  purpose, 
but,  even  if  it  were,  it  would  not  be  an  ex- 
cessive exertion  of  the  taxing  power  of  the 
borough.  In  order  that  this  power  may  be 
exercised,  it  is  not  at  all  necessary  that  the 
act  of  March  12,  1873,  authorizing  annual 
taxation  at  the  rate  of  10  mills,  should  be 
repealed.  The  constitution  of  1874,  and  the 
subsequent  legislation,  confer  additional  pow- 
er to  increase  municipal  indebtedness,  and 
to  levy  additional  taxation,  without  any 
necessity  for  repealing  pre-existing  limita- 
tions of  the  tax  rate  for  ordinary  municipal 
purposes. 

In  regard  to  the  allegation  that  the  voters 
were  induced  to  vote  in  favor  of  the  in- 
crease by  means  of  misrepresentation,  it  is 
obvious  that  the  judiciary  department  of  the 
government  cannot  go  into  such  an  inquiry. 

I  The  voters  are  responsible  for  their  votes, 
and  are  necessarily  supposed  to  inform  them- 
selves as  to  the  reasons  and  motives  for  the 

I  votes  which  they  decide  to  cast.  To  in- 
stitute an  inquiry  for  such  reasons  and  mo- 
tives in  each  individual  case  would  be  a 
work  of  impossible  performance,  and  of  no 
value  if  accomplished.  Tbe.  actual  vote  cast 
is  the  only  test  of  the  action  of  the  body  of 
\    voters. 

We  cannot  see  our  way  clear  to  declare 
the  contract  for  the  erection  of  the  works 
void  for  want  of  a  previously  enacted  ordi- 
nance authorizing  it  to  be  made.  It  is  true, 
there  should  have  been  such  an  ordinance. 
The  act  of  April  28,  1854  (P.  L.  513),  re- 
quires that  ordinances  of  the  borough  of 
Birmingham  shall  be  recorded;  but  no  pen- 
alty is  provided  for  its  violation,  except  that 
such  ordinances  shall  not  go  into  effect  until 
two  weeks  after  they   have  been  recorded. 


/. 


And  this  was  held  mandatory  in  Appeal  of 
Borough  of  Verona,  108  Pa.  St.  S3.  The  act 
appears  to  be  applicable  to  the  borough  of 
Millvale,  because  the  act  of  Maich  18,  1SG9 
(P.  L.  422),  confers  all  the  rights,  privileges, 
franchises,  etc.,  of  the  borough  of  East  Bir- 
mingham upon  the  borough  of  Millvale.  But 
in  Verona's  Appeal  it  was  held  that  an  act 
passed  in  1S73,  validating  the  general  plan 
of  the  borough,  cured  the  defect  arising  from 
the  want  of  record.  And  in  Borough  of 
Milford  v.  Milford  Water  Co.  (Pa.)  17  Atl. 
185,  so  much  relied  upon  by  appellants,  it 
was  held  that,  although  the  original  ordi- 
nance was  void,  because  members  of  the  water 
company  were  also  members  of  the  councils, 
another  and  similar  ordinance  might  have 
been  passed  at  any  time  subsequently,  when 
the  councils  were  purged  of  the  presence  of 
the  members  of  the  water  company.  In  the 
present  case,  we  are  not  referred  to  any 
provision  of  the  law  which  makes  the  con- 
tract void  for  want  of  a  previously  enacted 
ordinance,  where  it  was  actually  adopted 
and  authorized  by  proper  vote,  in  the  form 
of  a  resolution  at  a  properly  called  meeting 
of  the  council.  Such  a  resolution  was  passed 
at  the  meeting  of  August  16,  1893;  and  at 
the  meeting  of  August  29,  1893,  the  con- 
ti-act  in  writing  was  produced  and  read, 
with  the  specifications,  and  both  were  adopt- 
ed. At  the  meeting  of  August  29th  the  con- 
tract was  presented,  and  the  burgess  and 
clerk  were  authorized  to  sign  it,  and  affix  the 
corporate  seal.  Afterwards,  at  the  meet- 
ing of  October  3,  1893,  a  formal  ordinance 
was  enacted,  directing  the  erection  of  water- 
works according  to  the  plans  and  specifica- 
tions previously  adopted;  the  sum  of  $65,- 
000,  arising  from  theloanof  $80,000,  which  had 
been  authorized  by  the  previous  popular  vote, 
was  appropriated  for  the  construction  of  the 
works;  and  all  previous  contracts,  acts,  or 
other  things  theretofore  done  in  pursuance 
of  any  resolution  or  vote  of  the  burgess  and 
council  in  relation  to  the  erection  of  water- 
works were  duly  ratified  and  confirmed,  as 
fully  as  if  done  after  the  passage  of  the 
ordinance.  This  ordinance  was  duly  pub- 
lished, recorded  in  the  ordinance  book  of  the 
borough,  and  signed  by  the  burgess.  We  are 
unable  to  see  why  this  ordinance  does  not 
accomplish  the  same  effect  as  if  it  had  been 
enacted  before  the  contract  was  executed. 
Viewed  as  an  ordinance,  as  of  its  own  date, 
it  was  certainly  effective  to  authorize  aU 
subsequent  action  in  execution  of  the  con- 
tract, and  the  greater  part  of  tho  work  was 
then  yet  to  be  done.  The  previous  authori- 
zation of  the  contract  by  resolution  was  not 
void  in  itself.  It  was  not  affected  by  any 
badge  of  fraud,  nor  by  any  want  of  capacity 
in  the  members  of  council.  The  ordinance 
is  subject,  really,  only  to  the  objection  that 
it  ought  to  have  been  enacted  at  a  somewhat 
earlier  date.  But  that  circumstance  does 
not   avoid   it,    and   it    was   still    directly   ap- 


150 


OWNElRSHrP  OF  MUNICIPAL  MONOPOLIES. 


I  plicable  to  aU  subsequent  work.  As  to  pre- 
'.  vious  work,  it  is  certainly  good  by  way  of 
;  ratification.  Dill.  Mun.  Corp.  §  3S5.  "A 
I  municipal  corporation  may  ratify  the  unau- 
I  thorized  acts  and  contracts  of  its  agents  or 
officers  which  are  within  the  corporate  pow- 
1  ers,  but  not  otherwise." 


There  is  no  question  that  the  erection  of 
waterworks  was  entirely  within  the  cor- 
porate powers  of  the  borough.  Upon  the 
whole  case,  we  feel  constrained  to  affirm  the 
action  of  the  learned  court  below.  Decree 
affii-med,  and  appeal  dismissed,  at  the  cost 
of  the  appellants. 


ACTS  ULTRA  VIRES  AFFECTING  PUBLIC  PROPERTY. 


151 


HURON  WATERWORKS  CO.  v.   CITY   OF 
HURON. 

MYERS  et  al.  v.  CITY  OF  HURON  et  al. 

(62  N.  W.  975,  7  S.  D.  9.) 

Supreme  Court  of  South  Dakota.     April  20, 
1S05. 

Appeal  from  circuit  court,  Boadle  county; 
A.  W.  Campbell,  Judge. 

Two  actious,  one  by  the  Huron  Water- 
works Company  against  the  city  of  Huron, 
and  one  by  H.  Ray  Myers  and  Henry  Sc-hal- 
ler.  on  behalf  of  themselves  and  all  other 
taxpayers  similarly  situated,  against  the  city 
of  Huron  and  the  Hui'on  Waterworks  Compa- 
ny. The  actions  were  consolidated,  and  from 
the  judgment  rendered  the  city  of  Huron, 
H.  Ray  Mj'ers,  and  Henry  Schaller  appeal. 
Reversed. 

A.  W.  Wilmarth  and  H.  Ray  Myers,  for 
appellants.     John   L.   Pyle,   for  respondents. 

CORSON,  P.  J.  These  two  actions  were 
consolidated  and  tried  together  in  the  court 
below,  as  they  involved  substantially  the 
same  question.  Judgments  were  rendered  in 
both  actions  in  favor  of  the  Huron  Water- 
works Company,  and  from  the  judgments  the 
city  of  Huron  and  II.  Ray  Myers  and  Henry 
Schaller  have  appealed  to  this  court. 

A  few  paragraphs  from  the  complaint  of 
H.  Ray  Myers  and  Henry  Schaller  and  three 
findings  of  fact  by  the  court  will  sufficiently 
pre.^ent  the  case  for  the  purposes  of  this 
decision. 

It  is  alleged  in  the  complaint:  "(3)  That 
heretofore,  and  during  the  years  1883  and 
1SS4,  under  and  by  virtue  of  the  power  con- 
ferred by  said  charter  of  the  city  of  Huron, 
the  city  of  Huron  did  construct,  and  cause 
to  be  constructed,  a  system  of  waterworks, 
consisting  of  engine,  boiler,  pumps,  water 
mains,  pipes,  hydrants,  sewei"S,  and  all  other 
appurtenances  necessary  to  a  complete  sys- 
tem of  waterworks,  at  a  great  expense,  to 
wit,  as  informed  and  believed  by  the  plain- 
tiffs, to  be  the  sum  of  forty  thousand  dollars; 
and  to  pay  for  said  watei-works  and  sewer, 
said  city  council  issue<l  the  bonds  of  the 
city  of  Huron,  for  said  forty  thousand  dollars, 
payable  fifteen  years  after  date,  bearing  in- 
terest at  the  rate  of  seven  per  cent,  per  an- 
num, having  first  been  directed  to  issue  said 
bonds  by  vote  of  the  people,  at  an  election 
duly  called  and  held  for  that  punx>se,  as 
provided  by  said  charter.  (4)  That  hereto- 
fore, and  during  the  year  188(5,  the  said  city 
of  Huron  caused  to  be  bored  and  constructed 
a  large  six-inch  artesian  well,  as  a  part  of 
an  addition  to  the  aforesaid  system  of  wa- 
terworks, and,  as  informed  and  believed,  at 
an  expense  of  four  thousand  five  hundred 
dollars."  "(G)  That  said  city  of  Hui-on.  from 
the  year  1883  to  July  21,  1890,  through  its 
city  council,  operated,  controlled,  and  main- 
tained said  waterworks,  and  made  all  need- 


ful rules  and  regulations  concerning  the  dis- 
tribution and  u.'^e  of  water  supplied  by  said 
waterworks  for  the  prevention  and  extin- 
guishment of  fires,  and  to  supply  the  citizens 
and  taxpayers  at  a  moderate  and  reasonable 
rate,  in  accordance  with  the  provisions  of 
section  7,  subd.  9,  of  the  charter  of  said 
city."  "(8)  That,  at  the  time  of  the  com- 
mission of  the  grievances  hereinafter  men- 
tioned, said  waterworks  were  owned  by. 
and  were  of  great  value  to,  said  city  and 
taxpayers  of  said  city  of  Huron,  amounting, 
as  informed  and  believed  by  the  plaintiffs, 
to  at  least  one  hundred  thousand  dollars." 
(12)  That  "the  mayor  and  city  council  of 
said  city  of  Huron,  on  or  about  the  21st  day 
of  July,  1890,  did  unlawfully  and  wrongfully, 
and  in  violation  of  the  city  charter  and  their 
high  and  legal  duties  and  trust  reposetl  in 
them  by  the  taxpayers  and  con^orators  of 
the  city  of  Huron,  execute  and  deliver  to  the 
defendant,  the  Huron  Waterworks  Company, 
a  deed  in  terms  conveying  to  said  defendant, 
the  Huron  Watei-works  Company,  the  entire 
valuable  waterworks  system  of  and  belong- 
ing to  the  city  of  Huron,  including  all  ma- 
chinery, buildings,  grounds,  engines,  boilers, 
water  mains,  hydrants,  artesian  well,  pumps, 
and  all  property  and  effects  of  every  descrip- 
tion appertaining  to  said  watei'works  sys- 
tem, and  placeu  the  said  defendants  the  Hu- 
ron Waterworks  Company  in  full  possession 
and  control  of  the  same,  without  the  con- 
sent and  to  the  great  injury  of  the  taxpayers 
and  corporators  of  the  city  of  Huron." 
The  plaintiffs  conclude  with  a  prayer  that 
the  sale  and  conveyance  might  be  declar- 
ed null  and  void;  that  the  officers  of  said 
city  be  enjoined  from  paying  over  to  the 
Huron  Waterworks  Company  the  rents  for  the 
use  of  water  for  the  city  puiposes  contract- 
ed to  be  paid  by  the  common  council  of  the 
city;  and  that  the  possession  of  said  water- 
works proi>erty  be  restored  to  the  city. 

The  court,  among  others,  found  the  follow- 
ing facts:  "Fourth.  That  the  city  of  Huron 
made  said  conveyance  in  pursuance  of  an 
agreement  to  make  the  same,  entered  into  on 
the  IGth  day  of  July.  1890,  at  which  time  ten 
thousand  dollars  was  paid  into  the  city  treasu- 
ry by  the  Dakota  Farm  Mortgage  Company, 
for  the  use  of  said  Huron  Waterworks  Compa- 
ny, and  on  the  21st  day  of  July,  1890,  the  bal- 
ance of  thirty-five  thousand  dollars  of  the  pur- 
chase price  was  paid  into  the  city  treasury  by 
the  Dakota  Farm  Mortgage  Company  for  the 
use  of  said  Huron  Waterworks  Company,  and 
on  that  day  the  city  executed  said  deed  of  con- 
veyance, and  delivered  the  same  to  said  Hu- 
ron Waterworks  Company,  and  placed  said 
company  in  possession  of  said  waterworks." 
"Seventh.  That  said  watei-Avorks  plant  was 
constructed  and  used  by  said  city  of  Huron 
for  the  convenience  of  the  citizens  of  the 
compact  community  embraced  within  the  cor- 
porate limits  of  said  city,  for  furnishing  wa- 
ter to  private  consumers,  for  domestic  and 
I   iwwer   purposes,    and    for  the   protection    of 


152 


ACTS  ULTRA  VIRES  AFFECTING  PUBLIC  PROPERTY. 


said  city  and  its  inhabitants  from  the  rav- 
ages of  fire,  and  the  same  has  at  all  times 
been  used  for  those  puiiooses,  both  by  the 
city  before  the  sale,  and  by  said  -waterworks 
company  since  said  sale."  "Tenth.  I  find 
that  neither  the  city,  nor  the  taxpayers  of 
the  same,  have  ever  paid  or  tendered  back 
to  said  waterworks  company  any  part  of 
the  purchase  price  of  the  said  waterworks, 
or  any  part  of  the  sum  paid  out  for  the  re- 
pairs or  extensions  of  said. waterworks  sys- 
tem, and  no  effort  has  been  made  on  the 
part  of  the  city  or  taxpayers  to  place  the 
waterworks  company  in  the  same  condition 
as  they  were  before  the  sale  and  delivery  of 
the  said  property." 

The  material  facts  in  the  action  of  Huron 
Waterworks  Co.  v.  City  of  Huron  are  stated 
in  the  opinion  delivered  in  that  case  on  a 
former  appeal,  reported  in  54  N.  W.  052,  3 
S.  D.  010,  and,  it  is  sufficient  to  say,  its  ob- 
ject was  to  obtain  an  injimction  against  the 
officers  of  the  city,  restraining  them  from  in- 
terfering  with  the   waterworks   property. 

It  will  not  be  necessary  to  notice  the  nu- 
merous assignments  of  error,  as  we  shall  con- 
fine ourselves  to  the  discussion  of  only  two 
questions  raised  by  the  record,  which  are: 
First.  Did  the  common  council  of  the  city 
of  Huron  possess  the  power,  unaided  by  state 
legislation,  to  sell  and  ti'ausfer  the  Huron 
waterworks  system  to  the  Huron  Waterworks 
Company,  a  private  corporation?  Second.  If 
the  city  council  did  not  possess  the  power  to 
dispose  of  the  waterworks  property,  can  the 
city  of  Huron  regain  possession  of  the  same, 
without  refunding  to  the  Huron  Waterworks 
Company  the  money  advanced  or  paid  by  it 
as  consideration  for  the  same? 
nj  The  learned  counsel  for  the  appellants  the 
city  of  Huron,  H.  Ray  Myers,  and  Henry 
Schaller  contend:  First.  That  the  water- 
works system  of  the  city  of  Huron,  having 
been  constructed,  by  virtue  of  a  power  con- 
ferred upon  the  city,  at  the  expense  of  the 
corporation,  became  the  property  of  the  city, 
for  public  use,  and  was  charged  with  a  trust, 
and  that  the  common  council  of  said  city, 
without  the  sanction  of  state  legislation,  did 
not  possess  the  power  to  sell  or  dispose  of 
the  same.  Second.  That  the  waterworks  sys- 
tem of  the  citj'  of  Huron,  having  been  con- 
structed, kept,  and  maintained  for  public  pur- 
pfise.';,  namely,  for  the  supply  of  water  for  the 
extinguishment  of  fires  within  the  corporate 
limits  of  the  city,  and  for  the  supply  of  the 
Inhabitants  of  said  city  with  pure  and  whole- 
some water  for  domestic  purposes,  was  cloth- 
ed with  a  public  trust  of  which  the  inhabit- 
ants of  said  city  were  the  beneficiaries,  and 
the  common  council  of  said  city  could  not, 
without  the  consent  of  the  legislative  power 
of  the  state,  divest  said  city  of  the  trust. 
Third.  That  the  only  power  conferred  upon 
the  city  of  Huron  by  its  charter  was  the 
power  to  "construct  and  maintain"  water- 
works for  the  city,  and  that  the  power  to 
"construct  and  maintain"  djcs  not  include  the 


power  to  sell  or  dispose  of  the  same.  Fom'th. 
That  the  attempted  sale  and  transfer  of  the 
said  waterworks  by  the  mayor  and  common 
council  was  without  authority  and  void;  and 
that,  such  sale  being  void,  the  city  of  Huron, 
in  its  corporate  capacity,  is  entitled  to  the 
possession  of  said  waterworks  property,  with- 
out refunduig  to  the  pretended  purchasers, 
the  Huron  Waterworks  Company,  the  amoimt 
paid  by  it  as  the  consideration  of  said  pur- 
chase. 

The  leai'ned  counsel  for  the  respondents  in- 
sists: "First.  The  city  had  power  under  its 
charter  to  dispose  of  this  property,  because 
it  was  erected  for  the  private  advantage  of 
the  people  of  the  compact  community  of 
which  the  municipality  was  composed,  and 
is  not  charged  with  any  public  trust  for  the 
general  public.  Second.  That  the  property 
was  not  devoted  to  a  different  use  from  that 
for  which  it  was  erected,  and  the  city  had  the 
power  to  contract  with  a  private  corporation, 
and  for  such  i^m-pose,  and  for  its  mainte- 
nance, the  location  of  the  legal  title  is  a 
matter  of  no  concern  whatever.  Third.  That, 
even  if  the  city  has  made  a  contract  in  ex- 
cess of  its  powers,  it  cannot  be  relieved  from 
the  effects  of  such  contract  until  it  has 
placed  the  plaintiff  in  the  same  position  as  it 
was  before  the  contract  was  entered  into. 
Fourth.  That,  if  the  city  has  exercised  a  pow- 
er beyond  its  charter,  only  the  state  can  com- 
plain of  such  action  in  an  appropriate  pro- 
ceeding instituted  by  the  state.  *  *  » 
Sixth.  The  city,  while  it  was  authorized  to, 
was  not  bound  to  maintain  these  waterworks, 
and  the  court  can  not  compel  it  nor  its  officers 
to  do  so.  *  *  *  Eighth.  All  the  contracts 
and  deeds,  taken  together,  are  only  an  ap- 
propriate means  of  carrying  out  the  powers 
conferred  upon  the  city.  They  are  only  an 
appropriate  means  of  providing  for  the  main- 
tenance of  the  waterworks  system  and  for 
extensions  to  the  same.    *    *    *" 

The  city  of  Huron  was  incorporated  under 
a  special  charter,  and  there  are  only  th 
sections  called  to  our  attention  as  bearing 
upon  the  question,  which  are  as  follows:  Sec- 
tion 1  i)rovides:  "That  the  city  of  Huron 
*  *  *  shall  have  power  to  make  all  con- 
tracts necessary  to  the  exercise  of  its  cor- 
poi-ate  powers,  to  purchase,  hold,  lease,  trans- 
fer and  convey  real  and  personal  property 
for  the  use  of  the  city  *  *  *  and  to  exer- 
cise all  the  rights  and  privileges  pertaining 
to  a  municipal  corporation."  Section  7,  pt.  8, 
provides  as  follows:  "The  city  cotmcil  shall 
have  power  *  *  *  to  organize  and  support 
fire  companies,  hook  and  ladder  companies, 
and  provide  them  with  engines  and  all  ap- 
paratus for  extinguishment  of  fires,  *  *  * 
to  construct  and  ftu'uish  reservoirs,  wells, 
cisterns,  aqueducts,  pumps,  and  other  ap- 
paratus for  protection  against  fires,  and  to  es- 
tablish regulations  for  the  prevention  and 
extinguishment  of  fires."  Section  7,  pr.  9, 
providis  as  ftllnws:  "The  city  council  shall 
have  i)ower    *    *    *    to  construct  and  maiu- 


der^ 
ree  ' 


ACTS  ULTRA  VIKES  AFFECTING  PUBLIC  PROrERTY. 


158 


tain  waterworks  and  make  all  neerlful  mles 
and   regulations   concerning   llie   distribution 
.    and  use  of  water  supplied  by   such   water- 
V  works." 

The  waterworks  of  said  city,  as  found  by 
the  court,  were  constructed  and  used  by  said 
city  of  Huron  for  protection  against  fire  and 
for  domestic  purposes,   and  it  had   been  so 
maintained  and  used  for  a  number  of  years 
prior  to  said  alleged  sale.     They  were  con- 
structed by  the   corporation  and  at  the   ex- 
pense of  the  same.    No  express  power  to  sell 
or  convey  said  property  has  been  conferred 
upon  the  mayor  and  common  council  of  said 
city,  nor  upon  the  cori)oration  itself,  unless 
such  power   is  included  in   the  powers  con- 
ferred upon  the  city  by  section  1,  which,  as 
we   have   seen,    provides    "that   the   city    of 
Huri)n    *    *    *    shall  have  power    *    •    *    to 
punhase,    hold,   lease,    transfer   and   convey 
real  and  personal  propertj'  for  the  use  of  the 
city,    *    *    *    and  to  exercise  all  the  rights 
and  privileges  pertaining  to  a  municipal    cor- 
I  poration."     The  coimsel  for  the  respondents 
concedes  that  there   is  a   class   of   property 
owned  by  a  city  that  the  common  council  of 
I  a  city  do  not  possess  the  power  to  sell,  and 
he  admits  that  public  parks,  squares,   com- 
'  mens,  cemeteries,  etc.,  come  within  this  class; 
I  but  he  insists  that  the  waterworks  of  a  city, 
though  constructed  by  the  city  at  the  expense 
I   of  the  corporation,   and  used   for  protection 
against  fire,  and  for  the  purposes  of  supply- 
'  ing  pure  and   wholesome   water  to  the  citi- 
zens, do  not  belong  to  this  class.    It  is  neces- 
sary, therefore,  to  detertuine  the  nature  and 
character  of  waterworks  prci^erly  held  by  a 
cit3^      The    grounds    upon    which    mimicipal 
(  corporations  are  denied  the  power  to  sell  and 
I  convey  the  class  of  property  above  referred 
to  are  that  such  property  is  held  by  the  cor- 
poration for  public  use,  and  is  therefore  char- 
f  ged  with  a  public  trust  of  which  the  corpora- 
I  tion  cannot  divest  itsell!,  except  by  the  ex- 
1  press  authority  of  the  lawmaking  power  of 

the  state. 

t      The  duties  imposed  upon  municipal  corpo- 

I   rations     for    governmental    purposes    purely 

need  not  be  considered,  as  it  cannot  be  claim- 

/   ed  that  the  exercise  of  the  power  to  create 

'    and   maintain  city   waterworks  is  strictly   a 

governmental  purpose,  so  far  as  it  relates  to 

the  state  at  large.    Neither  are  public  squares, 

'     parks,    wharves,    cemeteries,   lauding    places, 

/    fire    apparatus,    etc.,    held    for    governmental 

I     purposes,  in  the  sense  that  they  relate  to  the 

general  public  of  the  state;    but  they  are  gov- 

[    ernmental   in  the  sense  that  they  exist  for 

\    public  use,— that  is.   for  that  portion  of  the 

[lublic  embraced  within  the  limits  of  the  city. 

This  distinction  is  M'ell  stated  by  Judge  Dil- 

lijii   in   his  work  on  :Municipal   Coiporations. 

That  learned  author  says:    "As  respects  the 

usual    and    ordinary   legislative   and    govern- 

nunital  powers  conferred  upon  a  municipality, 

the  better   to  enable  it   to   aid   the  state   in 

properly  governing  that  portion  of  its  pe!i)le 

residing  within  the  municipality,  such  powers 


are  In  their  very  nature  public,  although  em- 
bodied in  a  charter,  and  not  conferred  by 
laws  general  in  their  nature  and  applicable 
to  the  entire  state.  But  powers  or  franchises 
of  an  exceptional  or  extraordinary  or  nonmu- 
uicipal  nature  may  be,  and  sometimes  are, 
conferred  upon  mmiicipalities,  such  as  are  fre- 
quently conferred  upon  individuals  or  private 
corporations.  Thus,  for  example,  a  city  may 
be  expressly  authorized  in  its  discretion  to 
erect  a  public  wharf,  and  charge  tolls  for  its 
use,  or  to  supply  its  inhabitants  with  water 
or  gas,  char.::ing  them  therefor  and  making  a 
profit  thereljj'.  In  one  sense  such  powers  are 
public  in  their  nature,  because  conferred  for 
the  public  advantage.  In  another  sense,  they 
may  be  considered  private,  because  they  are 
such  as  may  be,  and  often  are,  conferred  up- 
on individuals  and  private  corporations,  and 
result  in  a  special  advantage  or  benefit  to 
the  numicipality  as  distinct  from  the  public 
at  large.  In  this  limited  sense,  and  as  form- 
ing a  basis  for  the  implied  civil  liability  for 
damages  caused  by  the  negligent  execiition  of 
suL-h  powers,  it  may  be  said  that  a  municipal- 
ity has  a  private  as  well  as  a  public  charac- 
ter. And  so,  as  hereafter  shown,  a  munici- 
pality may  have  property  rights  which  are  so 
far  private  in  their  nature  that  they  are  not 
held  at  the  pleasure  of  the  legislature."  1 
Dill.  Mun.  Corp.  §  27.  While  parks,  squares, 
wharfs,  landing  places,  fire  apparatus,  etc.,  i 
are  not  absolutely  necessaiy,  to  enable  a  mu- 
nicipal corporation  to  perform  its  strictly  gov-! 
ernmental  duties,  so  far  as  they  relate  to  the 
state  at  large,  they  are  so  far  held  for  gov- 
ernmental purposes  that  they  cannot  be  ap- 1 
propriated  to  any  other  use  without  special  | 
legislation.  Mr.  Chji-f  Jiistice  T^;ilite,  in 
speaking  of  this  class  of  city  property  in  Mer- 
i weather  v.  Garrett,  102  U.  S.  473,  says:  "(1) 
Property  held  for  public  uses,  such  as  public 
buildings,  streets,  squares,  parks,  promenades, 
wharves,  landing  places,  fire  engines,  hose 
and  hose  carriages,  engine  houses,  engineei*- 
ing  instruments,  and  generally  everything 
held  for  governmental  purposes,  cannot  be 
subjected  to  the  payment  of  the  debts  of  the 
city.  Its  public  character  forbids  such  an  ap- 
propriation." And  Mr.  Justice  Fidd,  in  the 
same  case  (page  513),  says:  "What,  then,  is 
the  property  of  a  municipal  corporation, 
which,  upon  its  dissolution,  a  court  of  equity 
will  lay  hold  of  and  apply  to  the  payment  of 
its  debts?  We  answer,  first,  that  it  is  not 
property  held  by  the  corporation  in  trust  for 
a  private  charity,  for  in  such  property  the 
corporation  possesses  no  interest  for  its  own 
uses;  and,  secondly,  th;it  it  is  not  property 
held  in  trust  for  the  public,  for  of  such  prop- 
erty the  coi'poration  is  the  mere  agent  of  the 
state.  In  its  sti-eets,  wharves,  cemeteries, 
hospitals,  coiu'thouses,  and  other  public  build- 
ings, the  corporation  has  no  proprietary  rights 
distinct  from  the  trust  for  the  public.  It 
holds  them  for  public  use,  and  to  no  other 
^  use  can  they  be  appropriated  without  special 
I  legislative  sanction.     It  would  be  a  perver- 


154 


ACTS  ULTRA  VIRES  AFFECTING  PUBLIC  PROPERTY. 


sion  of  that  trust  to  apply  them  to  other 
uses."  It  is  difficult  to  perceive  upon  what 
principle  a  distinction  can  be  made  between 
the  waterworks  of  a  city,  constructed  at  the 
expense  of  the  corporation  and  used  to  supply 
water  for  fire  purposes,  domestic  use,  and  oth- 
er city  purposes,  and  public  parks,   squares, 

i  fire  apparatus,  public  buildings,  etc.,  used  for 
public  purposes,  and  the  courts  in  the  later 
decisions  seem  to  make  no  such  distinction. 
Judge  Dillon,  in  his  work  above  referred  to, 
says:  "In  some  of  the  states  it  is  held  that 
the  private  property  of  municipal  corijora- 
tions— that  is,  such  as  they  own  for  profit,- 
and  charged  with  no  public  trusts  or  uses- 
may  be  sold  on  execution  against  them. 
•  *  *  On  principle,  in  the  absence  of  stat- 
utable provision,  or  legislative  policy  in  the 
particular  state,  it  would  seem  to  be  a  sound 
view  to  hold  that  the  right  to  contract  and 
the  power  to  be  sued  give  to  the  creditor  a 
right  to  recover  judgment;  that  judgments 
should  be  enforceable  by  execution  against 
the  strictly  private  property  of  the  corpora- 
tion, but  not  against  any  property  owned  or 
used  by  the  corporation  for  public  purposes, 
such  as  buildings,  hospitals,  and  cemeteries, 
fire  engines  and  apparatus,  waterworks,  and 
the  like;  and  that  judgments  should  not  be 
deemed  liens  upon  real  property,  except  when 
it  may  be  taken  in  execution."  Dill.  Mun. 
Corp.  §  570.     It  will  be  noticed  that  Judge 

I  Dillon  places  waterworks  in  the  same  class 

I  with  public  buildings,  hospitals,  cemeteries, 
etc.,  and  in  this  the  learned  author  is  fully 

I  supported  by  the  very  able  decision  of  the 
supreme  court  of  the  United  States  in  New 
Orleans  v.  Morris,  105  U.  S.  600.  Mr.  Jus- 
tice Miller,  speaking  for  the  court,  says:  "The 
learned  counsel,  in  the  oral  argument  and  in 
the  brief,  substantially  concedes  that  the  wa- 
terworks themselves,  in  the  hands  of  the  city, 
were  not  liable  to  be  sold  for  the  debts  of  the 
city.  And,  if  no  such  concession  were  made, 
we  think  it  quite  clear  that  these  works  were 
of  a  character  which,  like  the  wharves  owned 
by  the  city,  were  of  such  public  utility  and 
necessity  that  they  were  held  in  trust  for  the 
use  of  the  citizens.  In  this  respect  they  were 
the  same  as  public  parks  and  buildings,  and 
were  not  liable  to  sale  under  execution  for 
ordinary  debts  against  the  city.  *  *  *  In 
the  next  place,  the  city  was  not  situated,  as 
regards  this  property,  as  a  private  person 
would  be  in  the  purchase  and  acquisition  of 
ordinary  property.  The  city  could  not  have 
soM  this  property  as  the  law  stood.  It  could 
not  have  put  it  into  a  joint-stock  company 
without  the  aid  of  a  new  law.  The  legisla- 
ture, in  authorizing  the  change  in  the  foi-m 
of  the  ownership  of  the  waterworks,  could, 
since  it  injured  nobody  and  invaded  no  one's 
rights,  say,  as  to  the  city,  whether  it  be  called 
new  property  or  not,  that  such  ownership 
could  continue  exempt  from  execution.  As 
the  city  was  using  no  means  in  acquiring  this 
stock  which  could  have  been  appropriated  un- 
der any  circumstances  to  the  payment  of  the 


debts  of  the  appellees,  the  legislature  im- 
paired no  obligation  of  the  city  in  declaring 
the  stock  thus  acquired  exempt  from  liabil- 
ity for  debts."  This  decision  is  important, 
not  only  as  being  made  by  the  highest  court 
of  the  nation,  but  as  being  the  unanimous 
opinion  of  that  court  upon  the  question,  and 
made  subsequently  to  the  decision  in  the 
Meriweather  Case,  above  cited.  It  is  clear  ] 
and  to  the  point  that  the  waterworks  of  a) 
city  belong  to  the  same  class  of  property  asj 
"wharves,  parks,"  etc.,  and  holds  distinctly^ 
that  the  waterworks  property  of  a  city  can- 
not be  sold,  except  by  authority  of  the  legis- 
lature, and  the  court  says:  "We  think  it 
quite  clear  that  these  works  were  of  a  char- 
acter which,  like  the  wharves  owned  by  the  j 
city,  were  of  such  public  utility  that  they 
were  held  in  trust  for  the  use  of  the  citi- 1 
zens."  The  same  view  is  taken  by  the  ccmrt 
of  apjgeals  in  the  state  of  New  York  in  the 
case  of  City  of  Rochester  v.  Town  of  Rush, 
80  N.  Y.  302.  In  that  case  the  court  says: 
"The  argument  of  the  appellant  that  the  prop- 
erty in  question  would  properly  be  exempt 
from  a  city  tax,  as  it  was  procured  by  a  tax 
upon  property  within  the  city,  but  not  from 
a  county  tax,  but  the  people  of  the  county 
were  not  taxed  to  procure  it,  would  apply 
with  equal  force  to  the  city  hall  and  engine 
houses  and  machines  and  equipments  which 
make  those  houses  necessary,  and,  if  sound, 
would  subject  them  to  the  hazard  of  sale  un- 
der a  treasurer's  warrant  for  the  enforce- 
ment of  a  county  tax.  '  I  am  unable  to  per- 
ceive that  in  any  sense  the  waterworks  can 
be  regarded  as  the  private  property  of  the 
city,  as  distinguished  from  property  held  by 
it  for  public  use./  These  considerations  lead 
to  the  opinion  that  the  property  was  not  tax- 
able, and  that  the  proceedings  on  the  part  of 
the  assessors  of  the  town  of  Rush  in  regard 
thereto  cannot  be  sustained." 

The  sujireme  co_urt  of  Connecticut,  in  the 
well-considered  case  of  Town  of  West  Hart- 
ford V.  Board  of  Water  Com'rs,  44  Conn.  360, 
lays  down  the  same  doctrine.  In  that  case 
the  court  says:  "The  introduction  of  a  sup- 
ply of  water  for  the  preservation  of  the 
health  of  its  inhabitants  by  the  city  of  Hart- 
ford is  unquestionably  now  to  be  accepted 
as  an  undertaking  for  the  public  good,  in 
the  judicial  sense  of  that  term;  not,  indeed, 
as  the  discharge  of  one  of  the  few  govern- 
mental duties  imposed  upon  it,  but  as  rank- 
ing next  in  order.  For  this  purpose  the  leg- 
islature invested  the  city  with  a  portion  of 
its  sovereignty,  and  authorized  it  to  enter 
within  the  territorial  limits  of  West  Hart- 
ford, and  condemn  by  process  of  law  cer- 
tain lands  therein  for  the  purpose  of  stor- 
ing water  for  its  own  inhabitants.  It  au- 
thorized the  assessment  of  a  tax  upon  prop- 
erty within  the  city  of  Hartford  for  money 
wherewith  to  pay  for  this  land,  because  the 
taking  and  holding  was  for  the  public  good." 
Having,  as  we  think,  established  the  propo- 
sition, that  the  waterwoi-ks  of  a  city,  when 


ACTS  ULTRA  VIRES  AFFECTING  PUBLIC  PROPERTY. 


155 


constructed  and  owned  by  the  city,  are  to  be 
regarded  the  same  as  other  city  property 
held  for  public  use,  and  therefore  charged 
and  clothed  with  a  public  trust,  it  would 
seem  to  follow  that  such  property  cannot  be 
Bold  and  conveyed  by  the  mayor  and  com- 
mon council  of  the  city,  unless  under  spe- 
cial authority  conferred  upon  them  to  so 
sell  and  convey  the  same,  by  the  legislative 
power  of  the  state.  Jujlge  Dillon  says,  in 
his  work  before  referred  to,  that  they  (mu- 
nicipal corporations)  cannot  dispose  of  prop- 
erty of  a  piiblic  nature,  in  violation  of  the 
trusts  upon  which  it  is  hold,  and  they  can- 
not, except  under  valid  legislative  authority, 
disi)ose  of  the  public  squares,  streets,  or  com- 
mons. See  2  Dill.  Mun.  Corp.  §  57.5,  and 
cases  cited.  In  the  recent  case  of  Roberts 
V.  City  of  Louisville  (decided  in  1891)  17  S. 
W.  21G,  the  same  doctrine  was  laid  down  by 
the  sui2ri'me  court  of  Kentucky  as  to  the 
wharves  held  by  the  city  of  Louisville.  In 
that  case  the  court  says:  "The  power  of  a 
municipal  corporation  to  acquire  land  for  the 
purpose  of  erecting  wharves  thereon,  and 
to  chai-ge  wharfage,  is  not  a  necessary  inci- 
dent of  its  charter,  but  must,  like  all  its 
other  powers,  be  derived  directly  from  the 
legislature,  of  course  to  be  exercised  within 
the  limits  and  upon  conditions  of  the  grant. 
Dill.  Mun.  Corp.  §  110.  And,  looking  to  the 
nature  and  purpose  of  such  special  grant,  it 
must  be  regarded  as  a  trust,  involving  duties 
and  obligations  to  the  public  and  individuals 
which  cannot  be  ignored  or  shifted;  for  the 
power  to  acquire  implies  the  duty  of  the 
municipality,  through  its  governing  head, 
to  maintain  and  preserve  wharf  property  for 
benefit  of  the  public,  without  discrimination 
or  unreasonable  charges  for  individual  use. 
In  every  instance,  so  far  as  we  have  observ- 
ed, wharf  propertj'  of  the  city  of  Louis- 
ville has  been  acquired  under  act  of  the  leg- 
islature, and  paid  for  by  taxation;  and  in 
no  case  is  there  evidence  of  legislative  in- 
tention it  should  be  held  otherwise  than  in 
trust  for  use  of  the  public,  and  in  aid  of 
trade  and  commerce.  The  wharf  property 
being  so  held,  the  city  of  Louisville  cannot 
transfer  its  title  or  possession,  nor,  accord- 
ing to  a  plain  and  well-settled  principle,  can 
the  general  council,  which  is  by  statute  in- 
vested with  power  of  control,  and  burdened 
with  duty  of  maintaining,  preserving,  and 
operating  the  wharves,  either  delegate  the 
power  or  disable  itself  from  performing  the 
duties."  In  that  case  the  judghient  of  the 
court  below  dismissing  the  bill  for  an  in- 
junction was  reversed,  the  court,  in  effect, 
holding  that  an  injunction  enjoining  the 
mayor  and  common  council  from  making 
the  sale  should  be  granted.  In  the  case  of 
Smith  V.  Mayor,  etc.,  of  Nashville,  12  S.  W. 
924,  also  a  late  decision  made  in  1S90,  the 
supj^me  com-t  of  Tennessee  says:  "It  is  seen 
at  once  that  the  waterworks  are  corporate 
property.  That  is  not  denied.  The  debate 
is  with  respect  to  the  nature  of  the  use.     As 


to  that,  for  the  sake  of  convenience,  we  di- 
vide all  the  purposes  for  which  the  city 
furnishes  water  into  three  classes:  (1)  To 
extinguish  fires  and  sprinkling  the  streets; 
(2)  to  supply  citizens  of  the  city;  (3)  to  sup- 
plying persons  and  factories  adjacent  to  but 
beyond  the  corporate  limits.  If  the  busi- 
ness were  confined  to  the  first  class,  there 
would  be  no  ground  to  base  a  decision  on, 
so  clearly  would  the  use  be  exclusively  for 
public  advantage.  We  think  there  can  be 
but  little  more  doubt  about  the  second  class, 
especially  in  view  of  certain  words  in  the 
city  charter,  "to  which  we  will  advert  pres- 
ently. *  *  *  Having  accepted  the  char- 
ter, and  undertaken  to  exercise  this  authori- 
ty in  the  manner  detailed  by  the  witness,  it 
cannot  be  held  that  the  city  in  doing  so 
is  engaging  in  a  private  enterprise,  or  per- 
forming a  municipal  function  for  a  private 
end.  /it  is  the  use  of  corporate  property  for 
corporate  purposes,  in  the  sense  of  the  reve- 
nue law  of  1S77.  It  can  make  no  difference 
whether  the  water  be  furnished  the  inhabit- 
ants as  a  gratuity  or  for  a  recompense,  the 
sum  raised  in  the  latter  case  being  reasona- 
ble, and  applied  for  legitimate  purposes.'^ 

From  this  examination  of  the  authorities, 
we  conclude  that  there  is  no  distinction  be- 
tween the  nature  of  waterworks  property 
owned  and  held  by  the  citj',  and  public 
parks,  squares,  wharves,  quarries,  hospitals, 
cemeteries,  city  halls,  courthouses,  fire  en- 
gines, and  apparatus,  and  other  property 
owned  and  held  by  the  city  for  public  use. 
All  such  property  is  held  by  the  municipality 
as  a  trustee  in  trust  for  the  use  and  beuefit 
of  the  citizens  of  the  municipality,  and  it  can- 
not be  sold  or  disposed  of  by  the  common 
council  of  the  city,  except  under  the  au- 
thority of  the  state  legislature.  Such  prop- 
erty, as  before  stated,  is  private  property, 
in  the  sense  that  the  municipality  cannot  be 
deprived  of  it  without  compensation,  no 
more  than  can  a  private  corporation  be  de- 
prived of  its  property  by  the  law-making 
power.  But  such  property  is  so  owned  and 
held  by  the  municii)ality  as  the  trustee  of 
the  citizens  of  the  municipality,  for  the  use 
and  benefit  of  such  citizens.  It  has  been 
acquired  by  the  corporation  at  the  expense 
of  the  taxpayers  of  the  city,  for  their  use 
and  benefit,  and  the  law  will  not  permit  the 
corporation  to  dive.st  itself  of  the  trust,  nor 
to  deprive  the  citizens  of  their  just  rights  as 
beneficiaries  in  the  same. 

Counsel  for  respondents  has  called  our  at- 
tention to  a  number  of  cases  which  he  con- 
tends hold  a  contrary  doctrine  from  those  to 
which  we  have  directed  attention.  But, 
after  a  careful  examination  of  those  authori- 
ties, we  are  inclined  to  the  opinion  that  there 
is  no  such  contiict  as  the  counsel  suggests. 
The  leading  case  cited  is  Bailey  v.  New  York, 
3  Hill,  538,  in  which  Chief  Justice  Nelson, 
in  the  course  of  the  opinion,  uses  language, 
taken  by  itself,  that  possibly  might  be  con- 
strued as  favorable  to  the  respondents'  con- 


156 


ACTS  ULTRA  VIRES  AFFECTING  PUBLIC  PROPERTY. 


tention,  but  it  must  be  construed  with  ref- 
erence to  tbe  case  before  the  court.  The 
questions  we  are  now  considering  were  not 
involved,  the  only  question  there  being 
whether  or  not  the  city  of  New  York  was 
liable  for  damages  caused  by  a  defective  dam 
erected  in  the  construction  of  its  water  sys- 
tem. The  views  expressed  by  the  chief  jus- 
tice in  that  case  have  been  repudiated  by 
the  courts  of  New  York.  In  Darlington  v. 
Mayor,  31  N.  Y.  1G4,  the  court  of  appeals 
expressly  disapprove  of  the  doctrine  an- 
nounced by  Chief  Justice  Nelson.  That 
court,  on  pages  200  and  201.  says:  "If  this 
case  of  Bailey  v.  New  York  had  rested  where 
it  was  left  by  the  supreme  court,  though  I 
should  be  obliged  to  acknowledge  my  ina- 
bility to  appreciate  the  distinction  suggested 
between  the  public  and  private  functions  of 
the  city  government,  the  judgment  would 
have  been  entitled  to  a  certain  weight  as  au- 
thority. But  a  new  trial  took  place,  pursu- 
ant to  the  judgment  of  the  supreme  court, 
when  the  plaintiff  recovered  a  very  large  ver- 
dict, and  the  case  was  presented  to  the  court 
for  the  correction  of  errors,  whose  judgment 
of  affirmance  is  reported  in  2  Denio,  433. 
The  chancellor  and  three  senators  delivered 
written  opinions  in  favor  of  atflrmance,  and 
the  president  of  the  senate  an  opinion  for 
reversal.  None  of  the  opinions  even  alluded 
to  the  ground  taken  in  the  opinion  of  the 
supreme  court.  »  *  *  The  liability  of  the 
defendants  being  established  by  the  court  of 
ultimate  review,  on  an  entirely  different  the- 
ory from  that  which  affirmed  the  enterprise 
of  conveying  water  into  the  city  to  be  a 
private  work,  as  distinguished  from  an  act 
of  municipal  government,  the  doctrine  of  the 
opinion  of  the  supreme  court  was  substan- 
tially repudiated,  and  cannot,  therefore,  be 
considered  as  a  precedent.  It  is  but  the  opin- 
ion of  the  eminent  chief  justice  and  learned 
associates,  and  does  not,  like  a  final  adjudica- 
tion upon  the  cause  of  action,  settle  any 
principle  of  law."  And  that  court,  speaking 
of  the  question  now  before  us,  says:  "The 
sultjects  of  the  several  actions,  in  the  cases  I 
have  been  examining,  were  as  clearly  mat- 
ters of  municipal  government  as  any  which 
could  be  presented.  Nothing  could,  in  the 
nature  of  things,  partake  less  of  a  private 
character  than  the  supplying  of  water  to  and 
the  cleaning  of  the  streets  of  a  town  contain- 
ing nearly  a  million  of  inhabitants.  If  these 
were  not  public  subjects,  and  under  the  con- 
trol of  the  legislature,  the  city  is  not  sub- 
ordinate to  the  supreme  legislative  power  on 
any  conceivable  subject.  It  is  an  imperium 
in  imperio."  We  have  already  seen  that  in 
the  case  of  the  City  of  Rochester  v.  Town  of 
Rush,  SO  N.  Y.  302,  the  court  of  appeals  of 
New  York  distinctly  placed  waterworks  in 
the  class  of  property  held  for  public  use,  and 
therefore  exempt  from  taxation.  Georgia 
hold  that  the  common  council  of  the  city  of 
Rome  had  power  to  mortgage  the  water- 
works for  money  advanced  for  its  construc- 


tion. The  court  in  that  case  was  construing 
a  charter  in  which  the  powers  conferred  up- 
on the  common  council  of  the  city  of  Rome 
were  exceedingly  broad  and  comprehensive, 
— much  more  so  than  those  conferred  upon 
the  city  of  Huron  as  a  corporation,— and  they 
were  conferred  directly  upon  the  common 
council  itself.  The  decision  is  one  of  too 
local  a  character  and  too  dependent  upon  the 
provisions  of  the  charter  to  be  of  much 
M'eight,  and  so  it  seems  to  have  been  regard- 
ed, as  it  is  rarely  referred  to  by  the  courts; 
and  Judge  Dillon,  in  citing  the  decision, 
adds:  "Query,  as  to  implied  power  to  mort- 
gage waterworks,  see  supra,  section  5TG,  and 
note  577,"^ — thus  indicating  that  that  learned 
author  does  not  regard  the  doctrine  of  the 
court  as  sound  in  principle.  The  case  of 
Adams  v.  Railroad  Co.,  2  Cold.  G15,  involved 
the  sale,  by  the  common  council  of  the  city, 
of  some  outlying  lands  donated  to  the  city. 
The  land  had  not  been  devoted  to  any  public 
use,  and  was  not  held  by  the  city  in  trust  for 
public  purposes.  It  was  therefore  strictly 
private  property  of  the  city,  held  like  the 
private  property  of  a  natural  person  or  pri- 
vate corporation.  The  decision  in  that  case, 
therefore,  has  no  application  to  the  case  at 
bar.  The  doctrine  laid  down  in  the  case  of 
Western  Sav.  Fund  Soc.  v.  City  of  Phila- 
delphia, 31  Pa.  St.  175,  does  not  seem  to  be 
applicable  to  this  case.  The  contest  there 
was  between  the  city  and  a  private  gas  com- 
pany in  which  the  city  held  stock.  The  case 
is  somewhat  complicated,  and  it  is  not  easy 
to  determine  the  question  actually  decided 
by  the  court.  There  is  language  used  by  the 
judge  writing  the  opinion  that  cannot  be  sus- 
tained in  the  light  of  more  modern  authority, 
but  we  discover  nothing  in  the  decision  itself 
that  is  in  conflict  with  the  doctrine  that 
waterworks,  when  constnicted  and  owned  by 
the  city,  are  held  for  public  use,  and  there- 
fore charged  with  a  public  trust.  Our  con-  ^ 
elusion  is  that  the  waterworks  in  contro- 
versy were  held  by  the  city  of  Huron  for 
public  use,  and  therefore  charged  and  clothed 
with  a  public  trust,  and  that  the  mayor  and 
common  council  of  the  city  had  no  authority  / 
to  sell  and  transfer  the  same.  "jNIuniclpal 
corporations  are  created  and  exist  for  the 
public  advantage,  and  not  for  the  benefit  of 
the  officers  or  of  particular  individuals  or 
classes.  The  corporation  is  the  artificial 
body  created  by  the  law,  and  not  the  officers, 
since  these  are.  from  the  lowest  up  to  the 
council  or  mayor,  the  mere  ministers  of  the 
corporation."     1  Dill.  ]\Iun.  Corp.  §  21. 

The  common  council  of  the  city  of  Huron 
was,  to  a  certain  extent,  at  least,  but  agent 
of  the  corporation,  and  possessed  onlj^  such 
authority  as  was  conferred  upon  it  by  its 
charter.  While  it  probably  possessed  the 
power  of  disposing  of  strictly  private  prop- 
erty held  by  the  city,  and  not  held  for  public 
use,  and  therefore  not  charged  with  a  trust, 
it  did  not  possess  the  power  to  dispose  of  the 
city  waterworks  constructed  by  the  cori)ora- 


ACTS  ULTRA  VIRES  AFFECTING  PUBLIC  PROPERTY. 


157 


/  tion,  and  hold  for  public  use;  and  the  power 
confciTod  by  the  first  section  of  its  charter 
to  sell  and  dispose  of  the  property  of  the 
city  must  be  hold  to  be  limited  to  that  class 
of  property  held  as  strictly  private  property, 
and  not  charged  with  any  public  use. 
/2)Having  an-ived  at  the  conclusion  that  the 
sale  of  the  waterworks  by  the  city  council 
was  made  without  authority,  and  was  void, 
It  becomes  necessary  to  determine  the  sec- 
ond (luestion  presented,  namely,  is  the  city  , 
of  Huron  entitled  to  the  possession  of  the  wa- 
terworks property  without  refunding  to  the 
Huron  "Waterworks  Company  the  money 
paid  by  it  to  the  city  treasurer  as  the  consid- 
eration therefor,  and  the  money  expended  by 
said  company  in  making  improvements  and 
f  repairs  thereon?  It  will  be  noticed,  from  the 
I  finding  of  fact  in  reference  to  the  payment  of 
the  consideration,  that  it  was  paid  to  the  city 
I  treasurer,  or  "into  the  city  treasury."  It  is 
not  found  that  the  treasurer  paid  out  the  same 
by  the  order  of  the  common  council,  upon 
I  anj^  legitimate  or  other  indebtedness  of  the 
I  city,  or  that  he  has  appropriated  it  to  any 
\  city  purpose  whatever.  The  act  of  the  city 
I  treasurer  in  receiving  the  mouey  cannot  bind 
I  the  city  to  i-ofimd  it.  As  city  treasurer,  his 
I  only  authority  is  to  receive  and  receipt  for 
I  moneys  properly  due  the  city,  or  that  are 
I  legally  paid  into  the  city  treasury.  The  mon- 
•  ey  paid  for  this  waterworks  property  did  not 
belong  to  the  city,  and  the  money  was  there- 
fore paid  to  one  who  had  no  authority,  as 
treasurer  or  agent  of  the  city,  to  receive  it  in 
the  name  of  the  city,  and  apply  it  in  the  pay- 
ment of  city  Indebtedness.  The  money  in  the 
hands  of  the  treasurer  did  not  belong  to  the 
city,  and  there  being  no  finding  that  the  city, 
in  its  corporate  capacity,  accepted  and  appro- 
priated the  money,  the  city  is  not  liable  to  re- 
fund the  same.  This  subject  was  very  fully 
considered  and  discussed  in  Herzo  v.  City  of 
San  Francisco,  33  Cal.  134.  That  was  an  ac- 
tion brought  to  recover  of  the  city  money  paid 
by  the  plaintiff  for  "City  Slip  property,"  the 
sale  of  which  by  the  city  had  been  held  ille- 
gal and  void.  The  supreme  court  in  that 
case  held  that  the  plaintiff  could  not  recover, 
as  he  had  failed  to  show,  and  the  court  be- 
low had  failed  to  find,  that  the  corporation  in 
its  corporate  capacity  had  appropriated  the 
money  paid,  although  it  was  shown  that  the 
money  paid  for  the  property  had  been  paid 
into  the  city  treasury  and  paid  out  by  the 
treasurer  on  city  indebtedness.  The  court  in 
that  case,  on  page  147,  says:  "The  city,  in  our 
opinion,  not  being  responsible  for  the  acts  of 
her  assumed  agents  up  to  and  including  the 
placing  of  the  money  in  the  treasury,  and  the 
money  being  then  the  money  of  the  plaintiff, 
responsibility  for  the  money  does  not  attach 
to  her  till  she  has  converted  it  to  her  own  use. 
The  unauthorized  act  of  the  treasurer  in  pay- 
ing it  out  to  a  third  person  is  not  the  act  of 
the  city,  and  it  makes  no  difference  in  this 
respect  whether  he  pays  it  to  a  creditor  of  the 
city  or  to  any  other  person.    Suppose  that  he 


or  the  secretai-y  of  the  land  committee,  while 
the  money  was  in  his  hands,  acting  upon  the 
fact,  of  which  all  persons  concerned  had  no- 
tice, that  the  sale  was  a  nullity,  had  returned 
the  mouey  to  the  plaintiff,  it  could  not  be  said 
that  the  act  of  payment  was  the  act  of  the 
city.  She  could  not  rightfully  do  anything 
with  the  money,  and,  to  be  responsible  for  it, 
she  must  have  wrongfully  converted  it  to  her 
own  use,  and  this  she  must  have  done  by 
some  corporate  act,  and  the  only  act  compe- 
tent for  that  purpose  was  an  appropriation, 
for  that  is  the  only  manner  in  which  she  can 
dispose  of  money.  The  reports  of  the  secreta- 
ry of  the  land  committee  and  of  the  treasurer, 
and  the  acceptance  of  the  reports  by  the  com- 
mon council,  neither  changed  the  ownership, 
the  custody  nor  control  of  the  monej-,— it 
still  remained  in  the  hands  of  the  treasurer, 
and  continued  the  property  of  the  plaintiff." 
In  the  case  of  Pimental  v.  City  of  San  Fran- 
cisco, 21  Cal.  357,  one  of  the  same  class  of 
"City  Slip  cases"  above  referred  to,  the  plain- 
tiff' was  held  entitled  to  recover  back  the 
money  paid;  but  upon  the  ground  that  it  was 
shown,  not  only  to  have  been  received  by  the 
citj'  treasurer,  but  appropriated  by  the  cor- 
porate authority  of  the  city,  by  ordinances 
and  resolutions.  In  that  case  Chief  Justice 
Field,  speaking  for  the  court,  on  page  361 
says:  "The  moneys  paid  by  the  bidders  went 
into  the  ti-easm-y  of  the  city,  and  were  after- 
ward, by  different  ordinances  and  resolu- 
tions, appropriated  to  municipal  purposes. 
To  the  different  actions,  as  we  have  mention- 
ed, various  defenses  have  been  interposed. 
In  some  of  them,  as  already  stated,  the  entire 
transactions  giving  rise  to  or  connected  with 
the  alleged  sale  have  been  treated  as  ti-ansac- 
tions  to  which  the  city  was  an  absolute  stran- 
ger; in  other  words,  a  want  of  privity,  as  it 
is  termed,  between  the  bidders  and  the  city 
has  been  alleged.  This  alleged  want  of  privi- 
ty, as  we  imderstaud  it,  amounts  to  this: 
That,  inasmuch  as  the  mayor  and  land  com- 
mittee had  no  authority  to  make  the  sale,  they 
had  no  authoritj'  to  pay  the  money  which 
they  had  received  from  the  bidders  into  the 
treasury  of  the  city,  and  therefore  no  obliga- 
tion can  be  fastened  from  such  unauthorized 
act  upon  the  city.  The  position  thus  restrict- 
ed in  its  statement  is  undoubtedly  correct, 
but  the  facts  of  the  cases  go  beyond  this 
statement.  They  show  an  appropriation  of 
the  proceeds,  and  the  liability  of  the  city 
arises  from  the  use  of  the  moneys,  or  her  re- 
fusal to  refund  them  after  their  receipt."  The 
same  doctrine  is  laid  down  in  Agawam  NaL 
Bank  v.  South  lladley,  128  ^lass.  5U3.  In 
that  case  the  court  says:  "But  the  plaintiff 
contends  that  it  is  entitled  to  recover  upon  the 
last  count  in  the  declaration  for  money  had 
and  received,  and  at  the  trial  offered  to  show 
that  the  money  paid  or  credited  to  the  town 
treasurer  upon  the  notes  in  suit  was  used  by 
him  in  the  payment  of  debts  due  from  the 
town.  This  evidence  was  properly  rejected. 
It  fails  to  show  that  the  money  was  received 


158 


ACTS  ULTRA  VIRES  AFFECTING  PUBLIC  PROPERTY. 


by  the  town  in  its  corporate  capacity,  or  that 
the  act  of  the  treasurer  in  applying  it  to  the 
payment  of  its  debts  was  ever  authorized  or 
ratified  by  the  town.  The  difficulty  is  thai 
the  money  was  paid  to  one  who  had  no  an 
thority  as  treasurer  or  as  agent  of  the  town 
to  receive  it  in  the  name  of  the  town,  and 
apply  it  to  the  payment  of  town  debts.  If  a 
town  could  be  held  in  an  action  for  money 
had  and  received,  under  such  circumstances, 
then  the  purpose  of  the  second  and  third  sec- 
tions of  the  statute  would  be  wholly  defeated. 
It  makes  no  difference  that  the  treasurer  us.  . 
this  specific  money  in  payment  of  the  town 
debts.  There  is  nothing  to  show  any  appro- 
priation of  such  payments  by  the  town  to  it.s 
own  use,  or  any  ratification  of  the  act  The 
money  in  the  hands  of  the  treasurer  did  not 
belong  to  the  town."  Litchfield  v.  Ballou,  114 
U.  S.  190,  5  Sup.  Ct.  820.  It  would  be  mani- 
festly unjust  and  inequitable  to  require  the 
city  of  Huron  to  refund  the  consideration 
paid  for  these  waterworks,  before  it  can  be 
restored  to  the  possession  of  the  same,  be- 


cause the  same  was  paid  to  and  received  by 
an  officer  of  the  city  unauthorized  to  receive 
it.  If  it  had  been  further  found  by  the  court 
in  this  case  that  the  city  of  Huron,  through 
its  proper  corporate  authorities,  had  appropri- 
ated the  money  so  paid  to  the  payment  of  the 
legitimate  debts  of  the  city,  another  ques- 
tion might  have  arisen,  not  necessary  now  to 
consider.  But  it  is  clear  that,  upon  principle 
and  authority,  upon  the  findings  in  this  case, 
the  conclusions  of  law  and  the  judgment 
should  have  been  in  favor  of  the  city  of  Hu- 
ron, H.  Ray  Myers,  and  Henry  Schaller.  The 
circuit  court,  in  arriving  at  a  different  con- 
clusion, in  our  opinion,  committed  error.  The 
judgments  of  the  court  below  are  reversed, 
and  the  case  remanded,  with  instructions  to 
the  circuit  court  to  correct  its  conclusions  of 
law  in  accordance  with  this  opinion,  and  ren- 
der the  proper  judgments  in  favor  of  the  city 
of  Huron,  H.  Ray  Myers,  and  Henry  Schal- 
ler, as  prayed  for  in  their  complaint,  and 
against  the  Huron  Waterworks  Company; 
and  it  is  so  ordered,  all  the  judges  concurring. 


CONDEMNATION  OF  LAND  OUTSIDE  OF  CITY  LIMITS. 


159 


GALLON  V.  CITY  OF  JACKSONVILLE. 
(35  N.  E.  223,  147  111.  113.) 

Supreme  Court  of  Illiuois.     Oct.  27,   1893. 

Error  to  Morgan  county  court;  Owen  P. 
Thompson,  JudiLre. 

Proceeding  by  the  city  of  Jacksonville  to  con- 
firm a  special  tax  upon  the  land  of  William  P. 
Callon.  There  was  judgment  of  confirmation, 
and  Callon  brings  error.     Affirmed. 

W.  P.  Callon,  in  pro.  per.  Fred  H.  Rowe, 
for  defendant  in  error. 

BAILEY,  J.i        *****        • 
It  is  finally  insisted  that  the  ordinance  Is 


1  Part  of  the  opinion  is  omitted. 


invalid  because  it  provides  for  a  purchase  by 
the  city  of  land  outside  the  city  limits  for  the 
purpose  of  extending  the  sewer  to  its  outlet. 
In  Shreve  v.  Town  of  Cicero,  129  111.  226,  21 
N.  E.  815,  it  was  held  that  a  municipal  cor- 
poration has  authority  to  extend  a  sewer  be- 
yond the  corporate  limits  for  the  purpose  of  ob- 
taining a  proper  outlet,  and  if  it  has  that  pow- 
er we  see  no  reason  why  it  may  not  acquire,  by 
purchase  or  otherwise,  the  land  upon  which  to 
construct  the  sewer  to  its  outlet.  We  are  of 
the  opinion  that  none  of  the  objections  urged 
to  the  judgment  of  confirmation  in  this  case 
are  weU  founded,  and  the  judgment  will  there- 
fore be  affirmed. 


160 


MUNICIPAL  ORDINANCES. 


STATE  V.  BUENS.      (No.  10,954.) 

(11  South.  SIS,  45  La.  Ann.  34.) 

Supreme  Court  of  Louisiana.     Jan.  2,  1893. 

Appeal  from  recorder's  court  of  New  Or- 
leans;  Marius  S.  Bringier,  Judge. 

Thomas  Burns  Avas  convicted  of  being  an 
idle  and  disorderly  person,  and  appeals.  Re- 
versed. 

Augustus  Bernau,  for  appellant.  E.  A. 
O'Sullivan,  City  Atty.,  and  Henry  Renshaw, 
Asst.  City  Atty.,  for  the  State. 

McENERY,  J.  The  defendant  was  prose- 
cuted, convicted,  and  fined  before  the  record- 
er's coiu't,  in  the  city  of  New  Orleans,  for  vio- 
lating section  1  of  Ordinance  No.  5046,  Ad- 
ministration Series.     He  appealed. 

Among  the  several  grounds  selected  for  at- 
tacking the  ordinance,  it  is  alleged  that  it  is 
ultra  vires,  illegal,  and  unconstitutional.  The 
ordinance  is  intended  to  punish  idle  persons. 
It  prescribes  the  conditions  which  shall  con- 
stitute idleness.  Article  1  of  said  ordinance 
provides  "that  any  person,  being  able,  wholly 
or  in  part,  to  maintain  himself  or  herself,  or 
his  or  her  family,  by  work  or  other  means,  and 
fails  to  do  so,  *  *  *  shall  be  deemed  an 
idle  or  disorderly  person."  The  defendant's 
wife,  upon  whose  testimony  he  was  convicted, 
made  an  attidavit  against  her  husband,  as  fol- 
lows: "That  on  the  21st  day  of  December, 
1S91,  at  about  ten  o'clock  a.  m..  on  Bolivar 
street,  between  Gravier  and  Perdido.  in  this 
district  and  city,  one  Thomas  Burns  did  then 
and  there  violate  Ordinance  No.  5046,  Admin- 
istration Series,  section  No.  1,  in  this,  to  wit, 
by  failing  to  provide  for  his  lawful  wife  and 
children."  The  city  attorney,  in  an  elaborate 
brief,  contends  that  the  authority  of  the  city 
to  enact  said  ordinance  is  fully  covered  by  the 
city  charter  of  1S70,  under  the  power  granted 
to  the  city  by  the  legislature  to  regulate  and 
preserve  the  public  peace  and  good  order  of  the 
city,  and  to  provide  for  and  maintain  ;ts  clean- 
liness and  health.  There  can  be  no  doubt,  as 
stated  by  the  learned  city  attorney,  that  the 
city  is  interested  that  a  husband  and  father 
may  not  permit  his  wife  and  children  to  be  de- 
pendent upon  public  charity,  and,  being  well 
provided  for,  this  tends  to  promote  the  health 
of  the  city,  by  inducing  cleanliness,  and  pre- 
vents temptation  to  vice  and  crime.  But  the 
utmost  latitude  of  construction  could  not  vest 
in  the  city,  under  its  charter,  the  power  to 
regulate  the  domestic  relations.  There  are 
certain  moral  and  civil  duties,  the  violation  of 
which  the  state  has  not  made  a  penal  offense. 
Some  matters  of  individual  conduct  are  left  to 
the  individual  conscience  by  the  state,  to  which 
no  penalty  is  attached  for  their  violation. 
When  they  amount  to  a  civil  duty,  means  are 


provided  by  the  legislative  policy  of  the  state 
for  their  enforcement.  The  general  policy  of 
the  state  has  made  marriage  a  civil  contraot. 
To  enforce  the  obligations  resulting  from  it, 
civil  remedies  are  provided,  to  which  the  com- 
plaining party  must  resort  for  redress.  The 
Ordinance  No.  5046,  §  1,  or  that  part  of  it  un- 
der which  defendant  was  convicted,  is  there- 
fore inconsistent  with,  and  in  conflict  with,  the 
general  policy  of  the  state,  as  it  has,  in  its  gen- 
eral laws,  regulated  all  the  civil  duties  arising 
from  the  marriage  contract,  and  has  not  au- 
thorized the  city  of  New  Orleans  to  make  any 
change  in  relation  thereto.  1  Dill.  Mun.  Corp. 
§  329. 

The  city  has  the  power  to  punish  idle  per- 
sons or  vagrants.  But  it  must  be  done  under 
the  general  law  of  the  state,  since  the  legisla- 
ture has  enacted  one  on  this  subject,  and  de-j 
fines  the  limits  of  the  city's  powers  therevmder. ; 
Section  3S77,  Rev.  St.  provides  "that  all  idle 
persons,  who,  not  having  visible  means  to 
maintain  themselves,  hve  without  employment; 
all  persons  wandering  abroad,  and  lodging  in 
gTOceries,  taverns,  beer  houses,  market  places, 
sheds,  bams,  uninhabited  buildings,  or  in  the 
open  air,  and  not  giving  a  good  account  of 
themselves;  all  persons  wandering  abroad  and 
begging,  or  who  go  about  from  door  to  door, 
or  place  themselves  in  the  sti-eefs,  highways, 
passages,  or  other  public  places,  to  beg  or  re- 
ceive alms;  habitual  drunkards,  who  shall 
abandon,  neglect,  or  refuse  to  aid  in  the  sup- 
port of  their  families,  and  who  may  be  com- 
plained of  by  their  families.— shall  be  deemed 
vagrants."  The  city  ordinance  cannot  enlarge 
this  statute.  The  laws  of  the  state  operate 
within  the  corporate  limits  of  the  city  of  New 
Orleans,  and  upon  its  inhabitants,  as  else- 
where in  the  state.  The  city  has  not  been  ex- 
empted from  the  effects  of  this  general  law. 
The  city  ordinance  must  conform  to  this  stat- 
ute, when  punishing  vagrancy,  unless  the  va- 
grant is  armed  with  picklock  or  other  instru- 
ment, with  the  probable  intention  of  commit- 
ting a  felony,  when  it  must  confoi-m  to  section  ^ 
3SS3,  Rev.  St.,  and  following  sections.  It  is 
not  alleged  that  the  defendant  was  an  habitual 
drunkard,  who  had  abandoned  his  family,  or 
who  refused  to  aid  in  their  support.  A  sub- 
sequent clause  in  section  1,  Ordinance  No. 
5046,  conforms  to  this  requirement  of  legisla- 
tive policy.  But  the  first  part  of  said  section,  \ 
quoted  above,  under  which  defendant  was  , 
convicted,  is  not  embraced  within  the  general 
statute  of  the  state  re.gulating  vagrancy,  and 
it  is  in  conflict  with  the  laws  of  the  state  re-  1 
lating  to  the  marriage  contract;  and  it  is, 
therefore,  illegal,  null,  and  void.  It  is  there- 
fore ordered,  adjudged,  and  decreed  that  the 
judgment  appealed  from  be  annulled,  avoided, 
and  reversed,  and  the  defendant  discharged. 


MODE  OF  ENACTME^STT. 


161 


CITY  OF  VANCOUVER  v.  WINTLER  et  al. 

(36  Pac.  278,  8  Wash.  378.) 
Bupreme  Court  of  Washington.     March  6,  1894. 

Appeal  from  superior  court,  Clarke  county; 
E.  A.  Wiswall,  Judge. 

Action  by  the  city  of  Vancouver  against  A. 
E.  Wintler,  S.  M.  Beard,  and  A.  J.  Cook  to 
foreclose  liens  for  street  assessments.  Plaintiff 
obtained  judgment.  Defendants  appeal.  Re- 
versed. 

Bronaugb,  McArthur,  Fenton  &  Bronaugh, 
E.  C.  Bronaugh,  and  N.  H.  Bloomfield,  for 
appellants.  E.  E.  Coovert,  City  Atty.,  for  re- 
spondent. 

STILES,  J.i  •  •  *  *  *  1.  The  first 
point  made  by  appellants  is  that  the  general 
ordinance  governing  street  assessments  was 
void  because  not  passed  in  the  manner  re- 
quired by  the  statute.  The  law  governing  the 
passage  of  ordinances  is  contained  in  Gen.  St. 
§  G35,  the  first  clause  of  which  is:  "No  ordi- 
nance and  no  resolutioa  granting  any  franchise 
for  any  purpose  shall  be  passed  by  the  city 
council  on  the  day  of  its  introduction,  nor 
within  five  days  thereafter,  nor  at  any  other 
than  a  regular  meeting,  nor  without  being  sub- 
mitted to  the  city  attorney."    The  respondent 

1  Part  of  the  opinion  is  omitted. 
ABB.CORP.— 11 


has  deemed  it  important  to  claim,  and  argues 
at  length,  that  the  provision  applies  only  to 
ordinances  and  resolutions  granting  fran- 
chises, but  we  think  the  position  is  untenable. 
It  is  the  only  provision  in  the  act,  of  which 
it  was  a  part,  governing  the  matter  of  the 
passage  of  laws  by  the  council;  and  the  last 
clause  of  the  section,  which  relates  to  the 
number  of  votes  required  to  pass  any  ordi- 
nance, resolution,  or  ordc.  cleaily  shows  an 
intention  to  make  a  general  application  of  the 
whole  section  to  all  ordinances,  of  every  kind 
and  for  every  purpose.  But  the  complaint  of 
the  appellants  is  that,  although  more  than  five 
days  elapsed  between  the  introduction  of  Or- 
dinance 242  and  its  passage,  the  original  ordi- 
nance was  not  passed,  but  a  substitute  report- 
ed by  the  city  attorney.  It  is  a  well-known 
practice  of  legislative  bodies  to  proceed  in  this 
manner;  and,  so  long  as  the  substitute  is 
clearly  within  the  limits  of  the  subject-matter 
of  the  original  proposition,  we  see  no  reason 
why  municipal  councils  should  not  proceed  in 
the  same  way.  It  is  a  mere  method  of  amend- 
ment, and,  if  the  changes  made  are  such  as 
might  have  been  brought  about  by  ordinai-y 
amendments,  the  statute  is  not  infringed. 
This  was  the  case  with  the  ordinance  in  ques- 
tion,  and  it  was  therefore  properly  passed,  i 


1  Part  of  the  opinion  is  omitted. 


162 


MUNICIPAL   ORDINANCES. 


O'NEIL  V.  TYLER. 

(53  N.  W.  434,  3  N.  D.  47.) 

Supreme  Co  art  of  North  Dakota.     Nov.  7,  1892. 

Appeal  from  district  court,  Cass  county; 
W.  B.  McConnell,  Judge. 

Statutory  action  by  William  O'Neil  against 
R.  S.  Tyler  to  quiet  an  adverse  title  to  real 
estate,  which  defendant  claims  by  virtue  of 
certain  tax  deeds.  Judgment  for  plaintiff. 
Defendant  appeals.  Judgment  setting  aside 
the  tax  deeds  is  affirmed,  and  case  remanded 
for  further  proceedings  consistent  with  the 
opinion. 

Newman  &  Resser,  for  appellant.  J.  E. 
Robinson,  for  respondent. 

WALLIX,  J.i  *«***•*  y^e  will 
first  consider  the  validity  of  the  alleged  tax  of 
18S-1,  for  which  the  city  treasurer  sold  the 
property  in  1885.  At  that  time  the  amended 
charter  of  the  city  of  Fargo,  adopted  in  March, 
1881,  was  in  force.  Among  other  provisions 
of  the  charter  were  the  following:  "Sec.  5. 
The  powei-s  hereby  granted  shall  be  exercised 
by  the  mayor  and  council  of  the  city  of  Far- 
go as  hereinafter  set  forth."  "Sec.  8.  The 
council  of  said  city  of  Fargo  shall  consist  of 
eight  citizens  of  said  city,  being  two  from 
each  ward,  who  shall  be  qualified  electors  of 
their  respective  wards,  under  the  organic  act 
of  this  territoiy,  one  of  whom  shall  be  elected 
president  of  the  council  at  their  first  regular 
meeting  after  each  annual  election  provided 
in  section  9  of  this  act."  "Sec.  13.  All  ordi- 
nances of  the  city  shall  be  passed  pursuant 
to  such  rules  and  regulations  as  the  mayor  and 
council  may  presciibe:  provided,  that  upon  the 
passage  of  all  ordinances  the  yeas  and  nays 
shall  be  entered  upon  the  record  of  the  city 
council,"  etc.  "Sec.  38.  The  mayor  shall 
have  power  to  sign  or  veto  any  ordinance  or 
resolution  passed  by  the  city  council.  Any  or- 
dinance or  resolution  vetoed  by  the  maj'or  may 
be  passed  over  the  veto  by  a  vote  of  two 
thirds  of  the  whole  number  of  aldermen  elect- 
ed, notwithstanding  the  veto;  and  should  the 
mayor  neglect  or  refuse  to  sigu  any  ordi- 
nance, or  return  the  same  with  his  objections 
in  writing  within  ten  days,  the  same  shall  take 
effect  without  his  signature."  Section  12  de- 
clares that  the  "mayor  and  council"  of  the  city 
of  Fargo  "shall  have  power  to  levy  and  col- 
lect taxes  for  general  purposes."  Section  4 
of  an  ordinance  not  pleaded,  but  offered  in  evi- 
dence, also  confines  tlie  power  in  express 
terms  upon  the  "mayor  and  council"  to  "levy 
the  necessary  taxes"  on  the  "first  Monday  of 

1  Part  of  the  opinion  is  omitted. 


September."  The  answer  expressly  avers  that 
the  several  acts  pleaded  by  the  defendant  as 
constituting  the  assessment,  equalization,  and 
levy  of  the  taxes  of  1884,  and  embracing  also 
the  §ale  of  plaintiff's  property  by  the  city 
treasurer  in  1SS5  for  such  taxes,  and  the  ex- 
ecution and  deUvery  of  the  tax  certificates 
and  tax  deed,  were  all  and  singular  done  and 
performed  under  and  by  virtue  of  "chapter  6 
of  the  ordinances  of  the  city  of  Fargo." 

At  the  trial  plaintiff  claimed  that  no  such 
ordinance  existed,  because  the  same  was  nev- 
er legally  enacted  or  adopted  by  the  city  coun- 
cH,  for  the  reason  that  upon  the  passage  of 
the  ordinance  by  the  council  the  "yeas  and 
nays  wore  not  entered  upon  the  record  of  the 
city  council"  as  was  required  to  be  done  by 
section  13  of  the  city  charter.  We  think  the 
evidence  fully  sustained  plaintiff's  contention 
on  this  point,  and  the  trial  court  found  it  to 
be  true,  as  a  matter  of  fact,  that  the  yeas 
and  nays  were  not  entered  in  the  record  of 
the  city  council  upon  the  passage  of  the  ordi- 
nance, and  that  said  record  contains  no  en- 
try of  or  concerning  the  passage  of  said  ordi- 
nances, except  as  follows:  "April  19,  1881, 
council  met  pm\suant  to  adjournment.  Re- 
vised ordinances  were  accepted,  and  old  ones 
repealed."  Upon  this  record  we  are  compelled 
to  hold,  under  the  authorities  cited  below,  that 
the  alleged  ordinance  was  not  legally  passed 
or  adopted,  and  hence  never  became  a  valid 
enactment.  See  1  Dill.  Mun.  Corp.  §  291, 
and  cases  cited  in  note  1.  See  analogous  doc- 
trine applied  to  legislation.  Cooley,  Const. 
Lim.  (ftth  Ed.)  1G8;  Suth.  St.  Const.  §  48.  v'Sr 
attention  is  directed  to  the  fact  that  an  ordi- 
nance was  adopted  in  1884,  which,  among 
other  tilings,  changes  the  date  of  selling  real 
estate  for  city  taxes,  and  fixes  the  rate  of  in- 
terest on  city  taxes  after  such  taxes  become 
delinquent  at  a  rate  specified  by  section  1  of 
the  original  ordinance.  But  this  later  ordi- 
nance purports  to  be  only  an  amendment  of  a 
single  section  of  the  original  ordinance,  i.  e., 
section  3  of  chapter  6,  supra.  Standing  alone, 
the  amendment  is  meaningless,  and  wholly 
incapable  of  enforcement.  It  is  obvious  that 
the  amendment  would  not  have  been  adopted 
as  an  independent  law.  Under  such  circum- 
stances, the  amendment  must  be  held  to  be 
null  and  void.  Cooley,  Const.  Lim.  (Gth  Ed.) 
pp.  211,  212.  As  has  been  seen,  the  power  to 
levy  the  city  taxes  for  general  purposes  is,  by 
the  charter  as  w^ell  as  by  an  ordinance  of  the 
city,  conferred  in  express  terms  upon  the 
"mayor  and  council."  ~ 


2  Part  of  the  opinion  is  omitted. 


YEAS  AND  XAYS. 


163 


PRESTON   ▼.    CITY    OF    CEDAR    RAPIDS. 

(G3  N.  W.  577.) 

Supreme  Court  of  Iowa.     May  27,  1895. 

Appeal  from  district  court,  Linn  county; 
J.  D.  Griflith,  Judge. 

Action  to  recover  damages  to  plaintiff's 
property  by  reason  of  the  change  in  the 
grade  of  the  street  upon  which  said  property 
abuts.  From  a  verdict  and  judgmontagainst 
the  defendant,  it  appeals.     Reversed. 

Lewis  Heins,  for  appellant.  Hubbard  & 
Dawley  and  Jamison  &  Burr,  for  appellee. 

KINXE,  J.i       *•***«• 

4.  EiTor  is  assigned  upon  the  ruling  of  the 
court  in  admitting  the  ordinance  in  evidence, 
passed  in  lS7.j,  establishing  a  grade  on  First 
avenue  in  defendant  city.  It  is  said  that  the 
ayes  and  nays  were  not  called  and  recorded 
on  the  passage  of  the  ordinance,  and  hence 
it  was  not  legally  passed.  Code,  §  493,  re- 
quires that  "on  the  passage  or  adoption  of 
every  ordinance,  *  *  *  the  yeas  and  nays 
shall  be  called  and  recorded."  The  defend- 
ant city  is  acting  under  a  special  charter,  and 
was  never  incorporated  under  the  general  in- 
corporation laws,  of  which  said  section  493 
of  the  Code  of  1873  is  a  part.  Nor  does  the 
law  make  said  section  applicable  to  cities  act- 
ing under  special  charters:  Code,  §  551;  Acts 
21st  Gen.  Assem.  c.  93,  §  2;  Acts  22d  Gen. 
Assem.  c.  14,  §  2;  Acts  16th  Gen.  Assem.  c. 
116,  §  21.  It  does  not  appear,  nor  is  it  claim- 
ed, that  the  charter  of  defendant  city  requires 
that  upon  the  passage  of  an  ordinance  the 
yeas  and  nays  shall  be  called  and  recorded. 
Rule  IS  adopted  by  said  city,  and  which  was 
offered  in  evidence  by  it,  provides  that  "all 
votes  taken  on  the  adoption  of  ordinances 
shall  be  taken  by  yeas  and  nays,  each  mem- 
ber upon  his  name  being  called,  unless  for  spe- 
cial rea.sons  he  be  excused  by  the  council, 
shall  declare  openly  and  without  debate,  his 
assent  or  dissent  to  the  question."  The  rec- 
ord before  us  shows  all  of  the  aldermen  voted 
for  the  adoption  of  this  ordinance.  Inasmuch 
as  there  was  no  statute  or  rule  requiring  that 
the  yeas  and  nays  be  recorded,  we  do  not 
think  that  the  ordinan^'e  can  be  successfully 
assailed  because  no  record  was  made  of  the 
vote.  It  is  true  the  record  does  not  show  that 
the  yeas  and  nays  were  called,  but  it  does 
show  that  all  of  the  aldermen  voted  for  the 
ordinance.  Under  such  circumstances,  we 
may  well  presume  that  the  ordinance  was 
adopted  or  passed  in  the  manner  required  by 
the  rule.  Brewster  v.  City  of  Davenport,  51 
Iowa,  428,  1  N.  W.  7:>7.  All  of  the  cases  cited 
by  appellant  arose  in  municipalities  organized 

1  Part  of  the  opinion  is  omitted. 


and  acting  under  the  general  incorporation 
law,  and  therefore  are  not  applicable  in  this 
case. 

5.  Objection  is  made  to  the  ruling  of  the 
court  admitting  the  certificate  of  the  re- 
corder of  the  defendant  city  showing  the  pub- 
lication of  the  ordinance.  Section  24  of  de- 
fendant's charter  provided  that  ordinances 
shall  be  recorded  in  a  book  kept  for  that  pur- 
pose, and  shall  be  signed  by  the  mayor  and 
attested  by  the  recorder.  It  also  provides 
that  the  "recorder  shall  also  certify  in  said 
record  book  to  the  publication  or  posting  of 
ordinances  required  therein  when  the  same 
shall  have  been  published  and  posted."  It 
also  provides  that  before  ordinances  take  ef- 
fect they  shall  be  "published  in  a  newspaper 
printed  in  the  city,  at  least  ten  days,  or  posted 
In  two  public  places  in  each  ward,  for  the 
same  length  of  time."  The  certificate  of  the 
recorder  was  to  the  effect  that  the  foregoing 
ordinance  has  been' published,  as  provided  by 
law,  in  the  Daily  Repi^bllcan,— a  newspaper 
published  in  said  city.  The  certificate  does 
not  show  the  dates  of  publication.  It  appears 
that  the  ordinance  was  passed  on  February 
19,  1875.  It  also  appears  that  the  owners  of 
property  on  First  avenue  acted  upon  it  in 
1877  and  in  1878,  when  they  erected  their 
buildings.  It  appears  also  that  plaintiff  ac- 
quired his  knowledge  of  the  fact  of  the  pas- 
sage of  the  ordinance  of  1875  establishing  a 
gi-ade  on  First  avenue  from  having  read  it  in 
the  newspapers.  It  appeai-s  also  that  when 
the  building  was  erected  upon  plaintiff's  lot 
the  city  engineer  made  a  survey  showing  the 
grade  as  made  by  the  ordinance  of  1875. 
From  these  and  other  facts,  it  is  fair  to  pre- 
sume that  the  publication  certified  to  was 
made  soon  after  the  passage  of  the  ordinance. 
The  ordinance  introduced  in  this  case  is  the 
original  ordinance  as  it  appears  in  the  records 
of  defendant  city,  with  the  recorder's  certif- 
icate attached  thereto.  The  charter  of  de- 
fendant required  the  recorder  to  certify  in 
said  record  book  to  the  publication.  This  he 
did.  True  it  is  that  it  would  have  been  prop- 
er to  have  set  forth  in  the  certificate  the  sev- 
eral dates  of  publication,  but,  in  view  of  the 
charter  provision,  we  are  not  authorized  to 
say  that  the  certificate,  as  it  appears,  is  not 
a  certificate  "to  the  publication"  of  the  ordi- 
nance. The  only  matter  of  doubt  is  as  to 
whether  this  publication  was  in  fact  made. 
We  have  set  out  facts  from  which  we  think 
the  court  was  justified  in  holding  that  the 
ordinance  was  published  shortly  after  its  pas- 
sage, and  prior  to  the  time  plaintiff  erected 
his  building.  2 


2  Part  of  the  opinion  is  omitted. 


164 


MUNICIPAL  ORDINANCES. 


SWINDELL.   Mayor,   v.   STATE   ex  rel. 
MAXEY  et  al. 

(42  N.  E.  528,  143  Ind.  153.) 

Supreme  Court  of  Indiana.     Dec.  19,  1895. 

Appeal  from  circuit  court,  Marshall  county; 
George  Bursbon,  Special  Judge. 

Mandamus,  on  tlie  relation  of  James  W. 
Maxey  and  anotlaer,  against  Joseph  Swin- 
dell, mayor  of  the  city  of  Plymouth,  to  compel 
respondent  to  recognize  relators'  claims  to  offi- 
ces of  councilmen.  From  a  judgment  for  rela- 
toi"S,  respondent  appeals.     Reversed. 

R.  B.  -Oglesbee,  W.  B.  Hess,  and  Chas.  Kelli- 
son,  for  appellant.  J.  D.  McLai-en,  Sam.  Park- 
er, C.  D.  Drummond,  and  E.  C.  Martindale,  for 
appellee. 

JORDAN,  J.i  The  second  proposition  with 
wliich  we  are  confronted  is  vital  in  its  heai-ing 
v'pon  the  action  of  the  council  in  passing  the  or- 
dinance in  controversy.  The  vahdity  of  the 
ordinance  is  essential  or  fundamental  to  the 
claims  made  by  the  relators.  If  for  any  rea- 
son it  is  invalid,  the  i-ights  of  the  latter  are 
unfounded,  and  the  appellant  would  be  jus- 
tified in  his  refusal  to  recognize  them  as 
members  of  the  council,  and  hence  they  must 
necessarily  fail  in  the  prosecution  of  this  ac- 
tion. On  May  20,  1873,  the  common  council 
of  the  appellant's  city  duly  passed  and  adopt- 
ed an  ordinance  embracing  a  series  of  rules 
and  regulations  for  the  government  of  the 
common  council  in  the  transacting  of  its  busi- 
ness, and  as  to  the  mode  of  proceeding  in 
the  enactment  of  ordinances.  Some  of  these 
are  merely  rules  of  parliamentary  law.  Sec- 
tion 21  of  this  ordinance  is  as  follows:  "All 
ordinances  shall  be  read  three  times  before 
being  passed,  and  no  ordinance  shall  pass  or 
be  i-ead  the  third  time  in  the  same  meeting 
[that]  it  was  introduced,  provided  that  the 
c-ouncil  may  suspend  the  rule  by  a  two-thirds 
vote,  and  put  an  ordinance  upon  its  passage 
by  one  reading  at  the  time  it  is  read."  There 
is  no  question  but  what  this  rule  was  in  full 
foixe  and  effect  at  the  time  of  the  introduc- 
tion of  the  ordinance  under  consideration, 
and  there  is  evidence  showing  that  it  had 
generally  been  recognized  and  followed  by 
the  council  in  the  adoption  of  ordinances.  It 
is  the  mile  set  up  and  relied  upon  by  appel- 
lant in  the  second  paragraph  of  his  answer, 
in  which  it  was,  in  substance,  alleged  that 
the  ordinance  upon  which  the  relators  based 
their  claim  and  right  to  be  recognized  and  to 
act  as  councilmen  had  been  passed  in  viola- 
tion thereof.  During  the  trial  the  court  per- 
mitted the  appellant  to  introduce  this  rule  or 
ordinance  in  evidence,  but  subsequently,  be- 
fore the  cause  was  finally  submitted  to  the 
jury,  upon  the  motion  of  appellees,  the  court 
struck  out  and  withdrew  this  evidence,  over 
appellant's  objections  and  exceptions;  and 
this  action  of  the  court  was  assigned  as  one 

1  Part  of  the  opinion  is  omitted. 


of  the  reasons  in  the  motion  for  a  new  trial^^ 
The  trial  court  seemingly  justified  its  action 
in  eliminating  this  evidence  upon  the  ground,. 
as  insisted  by  the  relators,  that  this  rule  had 
been  repealed,  as  the  result  of  the  motion 
made  by  Councilman  Tibbetts,  and  carried 
in  the  manner  as  we  have  heretofore  stated, 
and  that  the  same  was  not  in  force  when  the 
ordinance  in  question  was  passed.  The  ver- 
bal motion  made  by  this  councilman,  as  re- 
coi-ded  by  the  clerk,  by  which  it  was  sought 
to  effectually  repeal  the  rules  oi-dained  for 
the  government  of  the  council,  was,  to  say 
the  least,  somewhat  indefinite.  When  record- 
ed it  read,  "  That  the  rules  heretofore  governing 
tJie  proceedings  of  council  as  printed  in  the  ordi- 
nance hook  be  and  the  same  are  hereby  annul- 
led and  repealed.^  (The  italics  are  our  own.)' 
Ordinances  of  cities  are  held  to  be  in  the  na- 
ture and  character  of  local  laws  adopted  by  a 
body  vested  with  legislative  authority,  and 
coupled  with  the  power  to  enforce  obedience 
to  its  enactments.  The  power  with  which 
common  councils  of  cities  are  invested  to  en- 
act ordinances  and  by-laws  implies  the  power 
to  amend,  change,  or  repeal  them,  provided 
that  vested  rights  are  not  thereby  impaired. 
But  certainly  it  cannot  be  successfully  as- 
serted that  the  law  will  yield  its  sanction  t<y 
the  mode  employed  to  repeal  the  one  by 
which  the  rule  in  controversy  was  ordained 
and  established.  If  the  procedure  by  which- 
the  power  of  repeal  was  attempted  to  be  ex- 
ercised upon  the  occasion  in  question  could 
be  sustained,  then  all  that  would  be  neces- 
sary to  accomplish  the  repeal  of  all  existing 
ordinances  of  a  city  would  be  the  adoption, 
at  any  regular  meeting,  by  the  common  coun- 
cil, of  a  mere  verbal  and  general  motion  to 
that  effect,  without  any  reference  whatever 
to  the  title,  number,  or  date  of  passage  of  the 
ordinance  or  ordinances  intended  to  be  re- 
pealed. In  the  case  of  Bills  v.  City  of  Go- 
shen, 117  Ind.  221,  20  N.  E.  115,  it  was  held 
by  this  court  that  a  defect  in  an  ordinance 
could  not  be  cured  or  amended  by  means  ot 
a  motion  subsequently  made  by  a  member  of 
the  council,  and  put  to  a  vote  and  carried. 
In  Horr  &  B.  Mun.  Pol.  Ord.  §  61,  it  is  said: 
"Express  repeals  can  only  be  effected  by  an 
act  of  equal  grade  with  that  by  which  the 
ordinance  was  originally  put  in  operation. 
No  part  or  featuie  of  an  existing  ordinance 
can  be  changed  by  a  mere  resolution  of  the 
council,  even  though  signed  by  the  mayor 
and  recorded.  A  new  ordinance  must  be 
passed."  See,  also,  sections  03,  04,  same  au- 
thority. In  Jones  v.  McAlpine,  04  Ala.  511, 
an  attempt  was  made,  by  a  motion,  to  raise 
or  change  the  license  fee  in  a  certain  ordi- 
nance by  the  mayor  and  board  of  aldermen 
of  tlie  city  of  Talladega.  This  method  was 
held  to  be  ineffectual  in  its  results.  The 
court  said:  "Until  an  ordinance  had  been 
adopted  by  the  mayor  and  aldermen  chan- 
ging the  ordinance  of  May  9,  1887,  *  *  • 
that  ordinance  remained  in  full  force,  though 
there  was  an  intention  to  change  it,  and  a 


SEVERAL  READINGS. 


165 


declaration  of  the  will  of  the  board  that  it 
should  be  chanj?ed." 

Considered,  then,  in  the  light  of  the  authori- 
ties which  we  have  cited,  and  the  nuinifcst 
reason  wliich  uecessarily  underlies  and  sus- 
tains the  rule  which  they  assert,  the  conclu- 
sion is  irrcsistiltly  reached  that  tlie  attempt 
to  repeal  the  ordinance  which  embraced  the 
series  of  rules  and  regulations  in  question, 
by  the  action  of  the  council  in  adopting  the 
motion  in  controversy,  was  ineffectual,  and 
<li(l  not  result  in  the  repeal  or  abrogation  of 
tlie  rule  under  consideration.  Having  reach- 
ed this  conclusion,  the  inquiry  arises  as  to  the 
effect  of  the  operation  of  this  rule  upon  the 
ordinance  upon  which  the  relators  found 
their  claims,  and  which  was  passed  and 
adopted,  as  it  appears,  by  the  council,  in  vio- 
lation of  its  pi-ovisions.  It  is  said  in  Dill. 
Mun.  Corp.  §  2SS8:  "After  a  meeting  of  the 
coiuicil  is  duly  convened,  the  mode  of  pro- 
ceeding is  regulated  by  the  charter  or  con- 
stituent act,  or  by  ordinances  passed  for  that 
pur])ose,  and  by  the  general  rules,  so  far  as 
in  their  nature  are  applicable,  which  govern 
other  delibei-ative  and  legislative  bodies."  In 
section  47,  Ilorr  &  B.  Mun.  Pol.  Ord.,  it  is 
said:  "The  usual  statutory  direction  is  that 
every  ordinance  shall  be  read  at  three  differ- 
ent meetings  before  its  final  enactment.  The 
direction  Is  n:^cessary,  as  a  safeguard  against 
too  luisty  legislation,  and  its  observance 
mandatorj'.  If  neglected,  the  ordinance  is  ab 
initio  void."  In  Beach,  Pub.  Corp.  §  494,  it 
Is  said:  "The  mode  of  enacting  the  ordi- 
nance is  generally  prescribed  in  the  charter 
or  an  ordinance,  and  their  requirements 
should  be  strictly  complied  with.  So,  where 
the  charter  prescribes  that  no  by-law  shall 
be  passed  unless  introduced  at  a  previous 
meeting,  the  provision  has  been  held  to  be 
mandatoi-j-,  and  a  by-law  passed  in  violation 
thereof  is  void."  In  the  case  of  Horner  v. 
Rowley,  51  Iowa,  G20,  2  N.  W.  430,  the  ques- 
tion arose  as  to  the  validity  of  a  town  ordi- 
nance authorizing  the  issuance  of  a  license 
for  the  sale  of  wine  and  beer.  It  appeared 
that  the  council  that  adopted  the  ordinance 
involved  In  that  ctise  consisted  of  seven 
members.  The  statute  of  the  state  provid- 
ed "tluit  ordinances  of  a  general  or  perma- 
nent nature  shall  be  fully  and  distinctly  read 
on  three  different  days,  unless  three-fourths 
of  tlie  council  shall  dispense  with  the  rides." 
I'pnn  a  motion  to  dispense  with  the  reading 
reiiuired  under  the  rule,  four  members  vot- 
ed in  the  atlirmative,  and  none  in  the  nega- 
tive. The  mayor  decided  the  motion  carried, 
and  the  ordinance  was  adopted.  The  court 
said:  "As  four,  the  number  who  voted  to 
6Msi)end  the  rule  and  pass  the  ordinance,  is 
not  tliree-fourtlis  of  seven,  it  follows  that  the 
ordinance  was  not  lejially  enacted.  It  was 
therefore  void,  and  no  valid  act  could  be  done 
under  its  provisions."  The  statutes  of  Ohio 
relating  to  cities  re'quire  tliat  ordinances  of  a 
permanent  nature  sliall  be  read  on  tliree  dif- 
ferent days,  unless  three-fourths  of  the  mem- 


bers of  the  council  dispense  with  the  rule. 
In  the  appeal  of  Campbell  v.  City  of  Cin- 
cinnati, 4'J  Ohio  St  403,  31  N.  E.  600,  it  was 
held  that  this  provision  was  mandatory,  and 
that,  in  passing  several  ordinances  "in  a 
lump,"  it  was  requisite  to  suspend  the  rule 
as  to  each,  in  order  to  render  its  final  adop- 
tion legal  and  valid.  In  considering  the  (pies- 
tion  therein  involved,  the  court,  per  Dick- 
man,  J.,  said:  "But  municipal  corporations 
act,  not  by  inherent  right  of  legislation,  like 
the  legislature  of  a  state.  *  *  *  They  ara 
the  creatures  of  the  statute,  invested  with 
such  power  and  capacity  only  as  is  conferred 
by  the  statute,  or  passes  by  necessary  impli- 
cation from  the  statutorj'  grant,  and  their 
powers  must  be  strictly  pursued.  Cooley, 
Const.  Lim.  (Gth  Ed.)  227;  Williard  v.  Kil- 
lingworth,  8  Conn.  247;  Ex  parte  Fi-ank,  52 
Cal.  606.  The  rule,  therefore,  as  stated  in 
numerous  adjudged  cases,  is  that  the  mode 
of  pi-ocedure  to  be  followed  in  the  enact- 
ment of  ordinances,  as  prescribed  by  statute, 
must  be  strictly  observed.  Such  statutory 
powers  constitute  conditions  pi'ecedent,  and, 
unless  the  ordinance  is  adopted  in  compli- 
ance with  the  conditions  and  directions  thus 
prescribed,  it  will  have  no  force.  17  Am.  & 
Eng.  Enc.  Law,  238,  and  cases  cited.  In 
Clark  V.  Crane,  5  Mich.  151.  the  supreme 
court  laid  down  the  rule  that  'what  the  law 
requires  to  be  done  for  the  protection  of  the 
taxpayer  is  mandatory,  and  cannot  be  re- 
garded as  merely  directory.'  The  require- 
ment that  ordinances  *  *  •  shall  be  fully 
and  distinctly  read  upon  three  different  days 
is  designed  as  a  safeguard  against  rash  and 
inconsiderate  legislation;  and,  being  in  a 
great  degree  essential  to  the  protection  of 
the  rights  of  property,  it  should  be  deemed  a 
mandatory  measure,  intended  as  a  security 
for  the  citizen."  The  case  of  State  v.  Pries- 
ter,  43  Minn.  373,  45  N.  W.  712,  asserts  the 
same  rule,  and  the  reasons  therefor.  This 
court,  in  tlie  appeal  of  the  City  of  Logans- 
port  V.  Crockett,  64  Ind.  319,  held  that  sec- 
tion 3.");u,  Rev.  St.  1894  (section  3099,  Rev. 
St.  ISSl'),  which  requires  that  on  the  adoption 
or  passage  of  any  by-laws,  ordinances,  or 
resolutions,  the  yeas  and  nays  shall  be  taken 
and  entered  on  the  record,  was  mandatory, 
and  that  a  noncompliance  Avitli  this  provision 
rendered  the  adoption  of  the  ordinance  nuga- 
tory.   See  Dill.  Mun.  Corp.  §  291. 

It  is  not  necessary  that  we  should  furtlier 
extend  the  consideration  of  the  question,  or 
refer  to  additional  authorities  to  show  that, 
when  the  legally  prescril)ed  method  of  pro- 
cedure in  the  enactment  of  an  ordinance  is 
neglected  or  violated,   the  latter  is  thereby 
rendered  invalid  and  of  no  force  or  effect. 
Tliis  doctrine  or  principle  seems  to  be  firmly 
settled  by  many  leading  authorities  and  de- 
cisions.    The  inquiry  then  is:     Is  the  same  | 
princi]de   M])plicable   when   the   procedure   is 
one  prescribed  by  an  ordinance  of  the  com-  ( 
mon  council  enacted   under  the  exercise  of  / 
the  power  granted  by  the  legislature?    There  ' 


166 


MUNICIPAL   ORDINANCES. 


Is  no  statute  in  this  state  that  embraces  or 
contains  the  provisions  or  requirements  in  re- 
gard to  the  passage  of  an  ordinance  by  the 
common  council  that  are  contained  in  sec- 
tion 21  of  the  ordinance  in  question.  This 
right  to  regulate  such  proceedings  in  this 
particular  respect  seems  to  have  been  com- 
mitted by  the  legislature  to  the  common 
council.  Section  3.'33,  Rev.  St.  1894  (section 
3098,  Rev.  St.  1881),  among  other  things,  pro- 
vides that  "the  common  council  may  by  or- 
dinance prescribe  such  rules  and  regula- 
tions, in  addition  to  those  herein  contained, 
for  the  qualification  and  official  conduct  of 
all  city  officers,  as  they  may  deem  for  the 
public  good,  and  which  shall  not  be  incon- 
sistent with  the  provisions  of  this  act."  By 
section  3G16,  Rev.  St.  1894  (section  3155,  Rev. 
St.  1881),  it  is  further  provided,  in  addition 
to  the  powers  expressly  granted,  that  the 
common  council  shall  have  power  to  make 
other  by-laws  and  ordinances  not  inconsist- 
ent with  the  laws  of  the  state,  and  neces- 
sary to  can-y  out  the  objects  of  the  corpora- 
tion, etc.  By  these  provisions,  plenary  pow- 
ers are  given  to  the  council  to  pass  and 
adopt  ordinances  prescribing  rules  and  regii- 
lations,  not  inconsistent  with  law,  for  its 
government  and  control,  when  duly  con- 
vened and  acting  officially,  in  regard  to  its 
proceedings  upon  the  passage  of  an  ordi 
nance  or  otherwise.  We  have  seen,  by  some 
of  the  leading  authorities  which  we  have 
heroin  cited,  that  when  the  mode  of  proceed- 
ing upon  the  part  of  the  council  in  the  adop- 
tion of  an  ordinance  is  regulated  either  by 
the  charter,  or  an  ordinance  enacted  there- 
uniler,  this  prescribed  mode  must  be  strictly 
followed.  Ordinances  of  a  city,  duly  enact- 
ed, are  in  the  nature  of  laws;  being  the  de 
cree  or  will  of  the  common  council,  which 
body  is  vested  with  legislative  authority. 
Public  policy  demands  and  authority  sanc- 
tions the  delegation  of  various  powers  of  lo- 
cal legislation  to  this  municipal  body.  The 
ordinances  enacted  in  the  exercise  of  these 
powers  have,  within  the  corporate  limits  of 
the  city,  the  force  of  laws.  They  are  held 
by  the  courts  to  be,  within  these  limits,  as 
binding  as  the  laws  of  the  state  and  gen- 
eral government,  aud  are  enforced  in  a  simi- 
lar manner,  and  under  like  rules  of  construc- 
tion. When  an  ordinance  is  duly  and  legal- 
ly passed,  under  the  warrant  of  the  legisla- 
ture, it  is  in  force,  by  the  authority  of  the 
State.  Horr  &  B.  Mun.  Pol.  Ord.  §  2;  Beach, 
Pub.  Corp.  §§  482,  486.  A  by-law  or  ordi- 
nance which  a  municipal  corporation  is  au- 
thorized to  adopt  is  as  binding  on  its  mem- 
bers and  officers,  and  all  other  persons  with- 
in its  limits,  as  a  statute  of  the  legislature. 
IJeland  v.  City  of  Lowell,  3  Allen,  407; 
Pennsylvania  Co.  v.  Stegemeier,  118  Ind.  305, 
20  N.  E.  843,  and  autliorities  cited;  Tied. 
Mun.  Corp.  §  1.53;  Dill.  Mun.  Corp.  §§  307, 
SOS.  In  Milne  v.  Davidson,  5  Mart.  (N.  S.) 
580,  a  contract  entered  into  in  contraven- 
tion of  an  ordinance  of  the  city  of  New  Or- 


leans was  held  to  be  void.  The  court  said; 
"The  ordinances  of  a  corporation,  while  act- 
ing within  the  powers  conferred  upon  them 
by  the  legislature,  have  as  binding  an  effect 
on  the  particular  members  of  that  corpora- 
tion as  the  acts  of  the  general  assembly 
have  on  the  citizens  throughout  the  state, 
and  it  is  as  much  a  breach  of  duty  to  evade 
or  violate  the  one  as  it  would  be  to  evade 
or  violate  the  other.  The  moral  and  legal 
obligation  to  obey  them  is  the  same,  and  the 
consequences  of  nonobedieuce  ought  to  be 
the  same." 

These  many  authorities,  which  substantial-    | 
ly  enunciate  and  sustain  the  proposition  that 
a  municipal  ordinance  is  a  local  law  or  stat-  / 
ute,  upon  which  rests  both  the  moral  and 
legal  obligation  to  obey  of  all  persons  sub-  \ 
ject  thereto,  and  that  the  results  of  a  non-  I 
compliance  with  the  mandatory  or  prohibi-  ' 
tory  provisions  thereof  must,  in  reason,  be 
the  same,  in  effect,  as  follow  the  disobedi-  1 
ence  or  disregard  of  an  act' of  the  legislature  I 
of  like  import,  warrant  the  conclusion  and  ' 
holding  that  when  the  charter  law  of  a  city 
does  not  regulate  the  mode  of  procedure  to  \ 
be  observed  upon  the  adoption  of  an  ordi- 
nance by  the  council,  but  has  committed  the   j 
authority  or  power  so  to  do  to  that  body,    ' 
which,  in  pursuance  thereof,  has  prescribed    . 
by  ordinance  an  essential  and  salutary  rule,     1 
mandatory  and  prohibitory  in  its  provisions,     ' 
as  is  the  one  under  consideration,  the  coun- 
cil must  yield  to  it  their  obedience,  and,  in 
the  enactment  of  an  ordinance,  mtist  be  con- 
trolled thereby,  unless  suspended  in  the  man- 
ner or  by  the  vote  provided,  and  that  the 
consequences    of    refusing    to    substantially 
comply  with  its  provisions,  or  a  violation  of   I 
its  inhibition,   must,  in  reason,  be  the   same  I 
as  the  noncompliance  with  or  a  violation  of 
a    requirement    prescribed    by    the    statute. 
The  section  of  the  ordinance  in  question  pre-  i 
scribed,    substantially,    that   "all    ordinances  ' 
shall    be    read    three    times    before    being  \ 
passed.     No  ordinance  shall  pass  or  be  read  j 
the  third  time  at  the  same  meeting  in  which 
it   was   introduced."     The  word   "all"    may 
mean  "every,"  and  is  to  be  construed  in  this 
connection.      Bloom   v.    Xenia,   32   Ohio    St. 
461.     We  may  therefore  read  the  rule  thus: 
"Every  ordinance  shall  be  read,"  etc.     The 
first   clause   is   mandatory,   and   the   second 
prohibitory.     Such  a  rule  prescribed  for  the  ^ 
government   of   legislative   bodies   is   recog-  | 
nized  by  the  courts  as  a  salutary  one.     It  Is 
a  check  upon  what  sometimes  might  prove  / 
to  be  ill-advised,  prematurely  considered,  or  , 
pernicious  legislation.     If  a  common  council 
were  permitted  to  willfully  ignore,   utterly  j 
disobey,  and  violate  an  ordained  rule  of  this  ' 
character,    injurious   results   to  the   inhabit-    | 
ants  of  the  corporation  might,  and  possibly    ( 
would,  result.      It  is  therefore  tlie  duty  of    , 
courts  to  require  a  strict  compliance  with  / 
mandatory  provisions  of  the  law,  of  the  char- 
acter  and    purpose   of  the  one  in   question.  I 
A  two-thirds  vote  of  the  council  was  requir- 


SEVERAL  READINGS. 


167 


ed,  to  suspend  the  rule.  This,  in  reason  at 
least,  must  be  construed  and  held  to  mean 
not  less  than  two-thirds  of  all  the  members 
present  at  any  meeting  of  the  council.  At- 
kins V.  Phillips,  2G  Fla.  281,  8  South.  420. 
It  appears  from  the  record  that  the  acts  of 
the  council  antecedent  to  and  including  the 
final  passage  of  the  ordinance  creating  the 
ward  in  controversy  only  received  the  votes 
of,  and  were  sanctioned  by,  throe  of  tlie  six 
councilmeu  present  at  the  mooting.  Three 
cannot  be  held  to  be  two-thirds  of  six. 
Hence,  in  no  manner,  or  upon  any  view  of 
the  case,  was  a  suspension  of  the  rule  ef- 
fected. Viewed  then,  in  the  light  of  the  rea- 
son and  logic  of  the  authorities  herein  cited, 
we  are  constrained  to  hold  and  adjudge  that, 
the  ordinance  having  been  passed  in  non- 
j  compliance  with  and  in  violation  of  the  or- 
dained rule  in  controversy,  it  is  invalid  and 
inoperative,  and  that  the  action  of  the  coun- 
cil based  thereon,  in  appointing  the  relators, 
is  likewise  void,  and  consequently  the  latter 
cannot  successfully  maintain  this  action. 
City  of  Logausport  v.  Logg,  20  Ind.  315.  Ap- 
pellant was  entitled  to  expose,  by  facts,  suffi- 
ciently in  his  answer,  the  invalidity  of  the 
relators'  appointment,  and  to  prove  the  same 
by  evidence  upon  the  trial.  While,  perhaps, 
the  second  paragraph  of  the  answer  or  re- 
turn   contained    some    uTelevant    or    imperti- 


nent facts,  that  might  have  been  eliminated 
upon  motion,  still  the  facts  alleged  as  to  the 
ordinance's  having  been  adopted  in  disre- 
gard and  violation  of  the  rule  in  question 
were  pertinent  and  material  in  defense  of 
the  action,  and  the  paragraph  ought  not  to 
have  been  suppressed.  Atkinson  v.  Railroad 
Co.  (at  last  term)  41  N.  E.  947.  We  must 
not  be  understood  as  holding  by  this  opinion 
that  the  nonobservance  of  mere  technical 
rules  of  parliamentary  law,  which  are  em- 
ployed for  convenience  in  governing  the  ac- 
tion of  common  councils,  would  result  in 
rendering  an  act  of  such  bodies,  otherwise 
A'alld,  invalid,  but  our  holding  is  confined  to 
the  particular  rule  under  the  circumstances 
and  facts  in  question. 

From  the  conclusion  we  have  reached,  it 
follows  that  the  trial  court  erred  in  striking 
out  the  second  paragraph  of  the  answer,  and 
also  in  holding  that  the  rule  had  been  re- 
pealed by  the  motion  as  made,  and  the  judg- 
ment cannot  be  sustained.  It  is  therefore 
reversed,  and  the  cause  is  remanded,  with 
instructions  to  the  lower  court  to  vacate  its 
order  awarding  the  peremptory  writ  of  man- 
date, and  to  overrule  the  motion  to  strike  out 
the  second  paragraph  of  appellant's  answer, 
and  grant  him  leave,  if  requested,  to  file  an 
amended  one,  and  for  further  proceedings 
in  accordance  with  this  opinion. 


7 


168 


MUNICIPAL   ORDINANCES. 


CITY  AND  COUNTY  OP  SAN  FRANCISCO 
V.  BUCKMAN.     (No.  15,897.) 

(43  Pac.  396,  111  Cal.  25.) 

Supreme  Court  of  California.     Jan.  14,  1896. 

Commissioners'  decision.  Department  2. 
Appeal  from  superior  court,  city  and  county 
of  San  Francisco;   J.  C.  B.  Hebbard,  Judge. 

Action  by  tlae  city  and  coiuity  of  San  Fran- 
cisco against  A.  E.  Bucliman  to  restrain  liim 
from  digging  into,  tearing  up,  or  in  any  way 
obstructing,  the  roadway  of  Marliet  street,  in 
said  city.  From  an  order  denying  Ms  motion 
for  a  new  trial,  defendant  appeals.     Affirmed. 

Wm.  H.  Chapman,  for  appellant.  H.  T. 
Creswell,  for  respondent 

BELCHER,  C.     This  is  an  appeal  from  an 
order  denying  the  defendant's    motion   for  a 
new  trial.     The  action  was  brought  to  obtain 
a  decree  resti-aining  the  defendant,  his  agents, 
servants,    and    employes,    from    digging    into, 
tearing  up,  or  in  any  way  interfering  with,  the 
roadway,  roadbed,  sidewalks,  or  grade  of  Mar- 
ket street,  between  the  points  of  its  junction 
with  Valencia  street  and  Seventeenth  street. 
In  the  city  and  county  of  San  Francisco.     The 
defendant,  by  his  answer,  admitted  that  he  had 
commenced,  with  a  large  force  of  men,  to  grade 
a  portion  of  Market  street  between  the  points 
named;   and,  to  justify  his  right  to  do  so,  he 
set  up  an  order  (No.  2.318)  passed  by  the  board 
of  supervisors  of  said  city  and  county  in  De- 
cember,    1890,     "changing     and     establishing 
grades  on  Market  street,  southwesterly  from 
Valencia  street,"  and  a  resolution  (No.  4,498, 
third  series)  passed  by  the  said  board  in  Janu- 
ary, 1891,  granting  permission  to  certain  prop- 
erty owners  on  Market  street,  between  Valen- 
cia  and    Seventeenth    streets,    to    grade   said  - 
street  in  front  of  their  property  to  the  center 
line  thereof.     And  he  alleged  that  under  a  con- 
tract with  the  said  property  owners,   and  a 
permission   duly  obtained   from   the   superin- 
tendent of  sti-eets,  he  was  proceeding  to  gi-ade 
the  street  to  the  official  grade,  for  and  on  be- 
half of  the  property  owners,  and  was  lawfully 
performing  said  work,  when  restrained  by  the 
order  of  the  court  below.     The  case  was  ti-ied, 
and  the  court  found  that,  at  all  the  times  men- 
tioned, Market  street  was,  and  still  is,  one  of 
the  public  streets  of  the  city  and  county  of 
San  Francisco;    that  at  the  time  of  the  com- 
mencement of  the  action  the  defendant  was  en- 
gaged, with  a  large  force  of  men  in  his  em- 
ployment and   under  his   control,   in   digging, 
tearing  up,  removing,  and  otherwise  destroy- 
ing and  obstructing,  the  roadway  of  .said  street, 
between  Valencia  and  Seventeenth  sti-eets,  in 
such  a  manner  as  to  obstruct  the  free  passage 
and  use  of  the  same,  and  to  destroy  the  road- 
way thereof  for  the  use   and  purposes  of  a 
street   and    thoroughfare,    and    threatened    to 
continue  said  acts;    that  all  of  .said  acts  of  de- 
fendant were  done  wiMiout  the  consent  or  per- 
mission of  plaintifT,  or  any  of  its  officers  or 


agents,  and  contrary  to  the  express  commands 
of  plaintiff;  and,  as  conclusions  of  law,  that 
the  said  acts  of  defendant  constitute  a  public 
nuisance,  and  plaintiff  is  entitled  to  a  writ  of 
injunction  to  restrain  the  further  continuance 
thereof.  A  decree  was  accordingly  entered 
granting  the  plaintiff  the  relief  prayed  for. 

The  principal  question  presented  for  decision 
is,  were  the  findings  of  the  court  justified  by 
the  evidence?     It  was  proved  on  behalf  of  the 
plaintiff  that  on  July  26,  1887,  an  order  (No. 
1,924)  was  passed  by  the  board  of  supervisors 
establishing  tiie  grade  of  [Market  street  between 
Valencia  and  Seventeenth  streets,  and  it  was 
admitted  by  defendant  that,  prior  to  the  pas- 
sage of  order  No.  2,.'>1S,  the  said  street  had  been 
graded  to  the  official  grade  as  so  established. 
It  was  further  proved  that  resolution  No.  4,498 
(third  series)  was  never  passed  to  print,  but 
was  introduced  at  a  meeting  of  the  board  held 
on  January  2,  1891,  and  was  then  and  there, 
on  a  vote  taken  by  the  board,  declared  to  be 
adopted,  and  no  other  or  further  action  thereon 
was  ever  taken,  and  also  that  on  February  2, 
1891,  a  resolution  (No.  4,672,  third  series)  ex- 
pressly   I'epeiiling    resolution    No.    4,498    was 
adopted   by  the  board.     It  was  also  proved 
that  on  January  19,  1891,  an  order  (No.  2,388) 
expressly  repealing  order  No.  2.318  was  passed 
by  the  board.     The  general  street  law  of  1885, 
as  amended  in  1889  (St.  1889,  p.  157),  contains 
very  full  and   complete  pi'ovisions   for  work 
upon  public  streets.     The  general  rule  is  that 
the  work  is  to  be  done  by  contract,  and  to  be 
paid  for  by  assessments  of  the  expense  upon 
the  adjoining  property  owners,  in  the  propor- 
tions fixed  by  tlie  statute.     The  only  excep- 
tion to  this  rule  is  found  in  subdivision  10  of 
section  7  of  the  act,  whereby  it  is  provided  that 
"it  shall  be  lawful  for  the  owner  or  owners 
of  lots  or  lands  fi-onting  upon  any  street,  the 
width  and  grade  of  which  have  been  estab- 
lished by  the  city  council,  to  perform  at  his  or 
their  own  expense  (after  obtaining  from  the 
council  permission  so  to  do,   but  before  said 
council  has  passed  its  resolution  of  intention  to 
order  grading  inclusive  of  this)   any  grading 
upon  said  street  to  its  full  width,  or  the  center 
fine  thereof,  and  to  its  grade  as  then  estab- 
lished,"  etc.     And  in  section   68  of  the  con- 
solidation act  it  is  provided  that  "every  ordi- 
nance  or   resolution    of    the   Ixjard    of    super- 
visors, providing  for  any  specific  improvement, 
the  granting  of  any  privilege    *    *    *    shall, 
after  its  introduction  in  the  board,  be  publish- 
ed, with  the  ayes  and  nays,  in  some  city  daily 
newspaper  at  least   five  successive  days   be- 
fore final  action  by  the  board  upon  the  same,"  i' 
etc.     Worley's  Consolidation  Act,  p.  16.    From 
the  foregoing  provisions  of  the  statutes,   it  is 
evident  that  the  owners  of  lots   fronting  on 
Market  street  had  no  right  to  proceed  to  grade 
the  street,  or  to  contract  with  any  one  else  to 
grade  it,  until  after  they  had  obtained  permis-  \ 
sion  from  the  board  of  sujicrvisors  to  do  so,  \ 
and    that    such    permission    was    a    privilege, 
which  could  only  be  granted  in  the  mode  pre-  / 
scribed,  namely,  after  publication  for  at  least  ' 


PUBLICATIONS. 


169 


five  days.  It  must  follow,  therefore,  as  reso- 
lution No.  4,498  was  never  published,  that  it 
never  became  operative,  or  authorized  the  lot 
owners  to  grade,  or  in  any  way  to  disturb,  the 
street,  in  front  of  their  premises,  and  that  their 


contract  with  appellant  to  do  work  which  they    I 
had  no  right  to  do  was  void  and  of  no  ef£ect.i  ' 


1  Part  of  the  opinioa  is  omitted. 


170 


MUNICIPAL   ORDINANCES. 


STATE  (NORTH  BAPTIST  CHURCH,  Pros- 
ecutor)   V.  MAYOR,  ETC.,  OP  CITY 
OP  ORANGE. 

(22  Atl.  1004,  54  N.  J.  Law,  111.) 
Supreme  Court  of  New  Jersey.     Nov.  5,  1891. 

Certiorari,  at  the  prosecution  of  the  North 
Baptist  Cliurch,  to  the  mayor  and  common 
council  of  the  city  of  Orange,  to  inquire  into 
the  validity  of  an  ordinance  of  that  city  rela- 
tive to  the  opening  of  a  street,  and  to  bring 
up  all  proceedings  under  such  ordinance.  Or- 
dinance set  aside. 

Before  DEPUE,  DIXON,  and  REED,  JJ. 

Colie  &  Titsworth  and  J.  D.  Bedle,  for  prose- 
cutor.    Charles  F.  Lighthipe,  for  defendants. 

REED,  j.i        *        *        *        *        »        *        • 
There  are,  however,  irregularities  which  we 
are  constrained  to  regard  as  fatal  to  the  pres- 
ent ordinance.    These  irregularities  are  to  be 
found  in  the  manner  in  which  the  notice  of 
the   proposed   improvement,   as  well   as  the 
manner   in   which   tbe   ordinance,    after   its 
I  passage,  w^ere  printed.     The  charter  (P.  L. 
18G9,  p.  212,  §  61)  requires  that  public  notice  of 
the  contemplated  improvement  shall  be  given 
1  by  publishing  a  copy  of  the  proposed  ordi- 
/  nance,  and  that  the  said  notices  shall  state 
f  the  time  and  place  of  the  meeting  of  common 
'  council  at  which  they  will  proceed  to  consider 
]  the   said   ordinance.     A   supplement   to  the 
charter  (P.  L.  1873,  p.  461,  §  5)  requkes  that 
'   these  notices  shall  be  published  in  all  three 
of  the  newspapers  published  at  that  time  in 
the  city  of  Orange.    One  of  these  papers  was 
then,  and  still  is,  printed  in  the  German  lan- 
guage.    The  notice   of  the   time  and  place 
/    when  the  present  ordinance  would  be  consid- 
'    ered  was  printed  in  this  paper,  as  it  was  in 
the  other  two  papers,   in  the  English  lan- 

*  Part  of  the  opinion  is  omitted. 


guage.     This,  we  thinli,  was  a  mistake.    The  f 
primary  meaning  of  the  word  "publish"  is  to! 
"make  linown."     The  medium  through  whichj 
intelligence   is   communicated   in  a   German  i 
newspaper  is  the  German  language.    The  ob-  ) 
ject  to  be  attained  by  including  such  papers  / 
in  the  class  of  publications  is  to  bring  knowl- 
edge home  to  a  body  of  readers  by  whom,  as  ■ 
a  rule,  the  English  language  is  not  readily 
or  not  at  all  legible.     A  notice  contained  in  \ 
a  German  newspaper  in  a  language  other  than 
the  German  is  not  published,  but  only  printed.  | 
Again,   the  charter  requires  all  ordinances,  ( 
after  their  passage,  to  be  published  in  the 
same  three  papers.    This  ordinance  was  pub-  1 
lished  in  a  German  translation  only.    I  think  , 
this  was  also  a  mistake.    There  is  a  manifest  ' 
distinction  to  be  observed  between  the  pub- 
lication of  a  notice  and  the  publication  of  an' 
instrument  or  statute  or  ordinance.    A  notice  i 
requires  no  particular  collocation  of  words,  so  j 
long  as  it  conveys  a  clear  notion  of  its  sub- 1 
ject;    but  a  statute  or  ordinance  has  no  legal  i 
existence  except  in  the  language  in  which  it  j 
is  passed.    No  translation,  however  accurate,  1 
can  be  adopted  in  the  place  of  its  original 
text,  for  the  purposes  of  construction  in  a  j 
legal  proceeding.    Until  the  legislature  makes  i 
a  provision  for  the  printing  of  ordinances  in 
German  newspapers  in  translation,  it  is  not 
perceived  how  they  can  be  printed  otherwise 
than  litera  et  verbis.    The  publication  of  the 
translation  may  be  regarded  as  a  proper  ex- 
planatory adjunct  of  the  English  copy,  but 
cannot  be  accepted  as  a  legal  substitute  for 
it.    This  view  of  the  manner  in  which  an  or- 
dinance should  be   printed  under   these   con- 
ditions applies  in  some  degree  to  the  notice 
also.     As  already  set  forth,  the  charter  re- 
quires that,  as  part  ot  such  notice,  a  copy  of 
the  proposed  ordinance  shall  be  published. 
For  the   reasons   already   stated   this   copy 
should  appear   in   English.     The  ordinance 
must  be  set  aside. 


RECORD  OF  ORDESTANCE. 


171 


CITY  OF  HAMMOND  t.  NEW  YORK,  C.  & 
ST.  L.  RY.  CO. 

(31  N.  E.  817,  5  Ind.  App.  526.) 

Appellate  Court  of  Indiana.     Sept.  30,  1892. 

Appeal  from  circuit  court,  Porter  county; 
H.  A.  Glllett,  Special  Judge. 

Action  by  the  city  of  Hammond  against  the 
New  Y'ork.  Chicago  &  St.  Louis  Railway  Com- 
pany to  recover  a  penalty.  From  a  judgment 
in  favor  of  defendant,  plaintiff  appeals.  Re- 
versed. 

S.  Griffin  and  E.  D.  Crumpacker,  for  appel- 
lant.    Bell  &  Morris,  for  appellee. 

FOX,  J.i  *  *  *  *  A  cross  error  has 
been  assigned  by  the  appellees,  "that  the 
court  erred  in  its  first  conclusion  of  law, 
which,  on  the  facts  found,  should  have  been 
that  said  ordinance  was  invalid,  and  not  in 
force  and  effect."  The  judgment  that  we 
have  concluded  to  render  in  this  case  makes 
it  necessary  for  us  to  consider  the  cross  error 
assigned.  This  we  will  do  in  the  outset. 
/  This  presents  the  question,  was  the  ordinance 
I  invalid  for  the  reason  that  it  was  not  prop- 
'  erly  signed,  attested,  and  recorded?  Con- 
cerning "by-laws  and  ordinances"  enacted  by 
the  common  council  of  cities,  section  .3099  of 
the  Revised  Statutes  of  1881  (section  3.>34. 
Rev.  St.  1894),  provides  as  follows:  "3099 
j  [3534]  All  by-laws  and  ordinances  shall,  with- 
'  in  a  reasonable  time  after  their  passage,  be 
recorded  in  a  book  kept  for  that  purpose,  and 
shall  be  signed  by  the  presiding  officer  of  the 
city,  and  attested  by  the  clerk.  On  the  pas- 
/  sage  or  adoption  of  any  by-law,  ordinance,  or 
resolution,  the  yeas  and  nays  shall  be  taken, 
and  entered  of  record."  It  can  well  be  in- 
ferred that  the  reason  for  the  enactment  of 
this  statute  and  the  purpose  to  be  accom- 
plished by  it  was  to  remove  all  uncertainty 
as  to  the  identity  of  ordinances  in  force  in  a 
city,  as  well  as  to  furnish  proper  and  unmis- 
takable evidence  of  their  contents.  For  this 
purpose  the  statute  requires  that  all  ordi- 
nances shall  be  signed  by  the  presiding  officer 
of  the  city  and  attested  by  its  clerk,  and  be 
recorded  "in  a  book  kept  for  that  pui-pose." 
It  is  a  matter  of  common  knowledge,  in 
which  the  court  must  be  held  to  share,  that 
In  a  common  council  of  a  city,  as  in  other 
legislative  bodies,  "bills"  are  prepared  and  in- 
troduced by  the  individual  members,  and,  as 
a  usual  thing,  are  written  upon  separate  and 
detached  pieces  of  paper.  When  the  "bill" 
is  under  consideration  it  is  subject  to  change 
and  modification  by  amendment.  When  it  is 
"passed"  it  becomes  an  ordinance,  and,  as 
such,  goes  into  the  hands  of  the  clerk,  to  be 
by  him  placed  on  file  in  his  office.  If  left  in 
the  condition  in  which  it  is  when  it  goes  into 
his  hands,  and  nothing  further  is  done  with 
It,  it  would  contain  no  evidence  upon  its  face 
I  that  it  was  a  perfect  ordinance.  No  other 
evidence  of  its  contents  than  the  original 

1  Part  of  the  opinion  is  omitted. 


paper  would  be  in  ex;istence.     To  obviate  all 
this,  the  statute  requires  that  it  shall  be  sign-   . 
ed,    attested,    and    recorded.     When   this    is 
done,  its  identity  as  an  ordinance  is  fixed,  and 
perfect   evidence  of   its   contents   furnished, 
easy  of  access  to  all  concerned.     But  how 
shall  this  signing,  attesting,  and  recording  be 
done?     Was  there  a  substantial  compliance 
with   the  provisions  of   the   statute   in  this 
case?— are    the    questions    to    be    answered. 
Counsel  for  appellee  say  in  their  brief  that 
"this  question  lias  been  squarely  decided"  in 
the  case  of  Bills  v.  City  of  Goshen,  117  Ind. 
221,  20  N.  E.  115.     We  have  read  that  case 
with  some  care.     If  it  "squarely  decides"  the 
questions  involved  in  the  case  before  us,  as 
counsel  contend,  then  the  matter  is  settled, 
as  far  as  this  court  is  concerned,  for  we  have 
no  power  to  "directly  or  by  implication  re- 
verse or  modify  any  decision  of  the  supreme 
court."     But  we  do  not  so  understand  that 
case.    The  question  there  involved  was  essen- 
tially different  from  the  one  involved  here. 
In  that  case  the  question  as  to  whether  the 
ordinance  set  forth  in  the  opinion  had  been 
signed,  attested,  and  recorded  or  not  was  not 
before  the  court.     The  real  point  was  that 
the   ordinance   in   question   did   not   fix   the 
amount  of  license  fees  sought  to  be  charged 
against  the  defendant,  and  an  attempt  was 
made  by  the  common  council  to  supply  the 
omission   by   an   ordinary    motion   made   by 
"Councilman  Drake."    This,  it  was  very  prop- 
erly held,  could  not  be  done.     In  the  course 
of  the  opinion,  Olds,  J.,  says,  in  speaking  of 
the  legality  of  an  ordinance:    "The  statute 
requires  it  to  be  signed  by  the  presiding  offi- 
cer, and  attested  by  the  city  clerk,  and  re- 
corded;  and,  having  vested  the  power  in  the 
city,  to  be  exercised  in  a  certain  way,  it  can- 
not be  exercised  other  than  as  provided  by 
statute."     An  examination  of  this  case  will 
show  that  the  questions  decided  by  the  court 
will  not  furnish  us  with  any  light  whatever 
in  the  case  before  us.     The  court,  in  its  spe- 
cial finding,  states  the  fact  to  be  that  the  or- 
dinance "was  spread  of  record  at  length,  and 
recorded  in  the  minutes  of  said  council  pro- 
ceedings, in  a  book  kept  for  that  purpose," 
and  that  the  minutes  so  containing  a  record 
of  the  ordinance  "were  signed  by  the  presid- 
ing officer,  and  attested  by  the  clerk;    *    *    * 
that  all  the  ordinances  of  said  city  were  re- 
corded in  the  minute  book  of  council  proceed- 
ings, and  plaintiff  had  no  other  book  contain- 
ing records  of  ordinances."     The  record  of 
the   meeting   in   which   the   ordinance   "was 
spread  at  length"  showed  upon  its  face  that 
it  was  a  continuous  one,  and  only  contained 
the  minutes  of  the  proceedings  of  a  single 
meeting.     The  signing  thereof  by  the  presid- 
ing officer  and  the  attestation  of  the  clerk 
were   equivalent  to  signing   each   particular 
order,     resolution,    or    ordinance    contained 
therein,  severally.     The  minutes  so  entered 
certainly  constituted  a  record.     All  the  or- 
dinances of  the  city  were  so  recorded,  and 
not  otherwise,  for  no  other  book  was  kept  or 


172 


MUNICIPAIi  ORDINANCES. 


made  for  that  purpose.  Considering  the  sub- 
ject and  object  of  the  statute,  we  thinli  there 
was  a  substantial  compliance  with  the  spirit 
of  its  provisions,  and  that  the  ordinance  was 
to  all  intents  signed,  attested,  and  recorded. 
The  case  of  Upington  v.  Oviatt,  24  Ohio  St. 
232,  is  very  much  in  point.     It  was  there  held 


that  a  statute  requiring  ordinances  of  munic- 
ipal coi-porations  to  be  recorded  "in  a  book 
kept  for  that  purpose"  is  directory  only,  and 
that  recording  an  ordinance  in  the  "journal 
of  the  council"  was  sufficient.2     *     •     •     » 

2  Part  of  the  opinion  is  omitted. 


ORDINANCE  AFFECTING  POWER  OF  SUCCESSORS. 


17a 


COLUMBUS  GASLIGHT  &  COKE  CO.  v. 
CITY  OF  COLUMBUS. 

(33  N.  E.  292,  50  Ohio   St.  G5.) 

Supreme  Court  of  Ohio.     Jan.  24,   1893. 

Error  to  circuit  court,  Frauklin  county. 

Action  by  the  Columbus  Gaslight  &  Coke 
Company  against  the  city  of  Columbus.  Plain- 
tift"  luul  judgment,  which  was  reversed  by  the 
circuit  c-uurt,  aud  plaintiff  brings  error.  Af- 
firmed. 

K.  H.  Piatt,  for  plaintiff  in  eiTor.  Paul 
Jones  and  Florizel  Smith,  for  defendant  in 
error. 

SPEAR,  C.  J.  The  single  question  is  as 
to  the  sufficiency  of  the  petition.  If  that 
states  a  cause  of  action,  the  judgment  of  the 
circuit  court  should  be  reversed;  if  not,  the 
oiiposite  result  follows.  It  will  be  noted  that 
there  is  no  direct  allegation  that  the  grant 
from  the  city  gave  the  company  the  right  to 
maintain  its  pipes  at  any  particular  place  in 
the  street,  nor  at  any  prescribed  depth  beneath 
the  surface.  Nor  is  it  averred  that  the  action 
of  the  city  was  in  any  way  wanton,  nor  that 
the  change  of  the  grade  of  the  street  was  un- 
necessary; and  the  presumption  is  that  the 
city  acted,  in  that  behalf,  lawfully,  and  with- 
out negligence.  Nor  is  it  pretended  that  the 
city  has  denied  the  company's  right  to  main- 
tain its  pipes  in  Broad  sti'eet.  The  dispute 
involves  only  the  right  to  maintain  them  where 
first  laid. 

r  The  company's  claim  is  that,  while  the  con- 
sent of  the  city  must  first  be  obtained,  the  city 
having  the  right  to  make  reasonable  regula- 
tions as  to  the  terms  and  conditions  on  which 
the  company  may  occupy,  yet,  when  the  city 
has  given  its  consent,  has  made  the  grant,  the 
right  in  the  streets  is  in  the  nature  of  an  ease- 
ment, which  then  belongs  to  the  company  by 
force  of  the  statute,  and  the  city  cannot  inter- 
fere with  that  right,  save  upon  condition  of 
awarding  compensation  for  resulting  damage. 
It  is  freely  conceded  that  the  company  is  a 
public  agency.  It  is  further  conceded  that 
the  use  of  streets  and  alleys  for  gas  pipes, 
through  which  gas  is  to  be  conducted  for  the 
use  of  the  city  and  its  people,  is  a  recognized 
public  use  and  purpose,  and  that  the  general 
right  to  so  lay  and  maintain  such  conductors 
is  created  by  statute.  This  is,  however,  upon 
condition  of  consent  by  the  municipal  authori- 
ties, and  under  such  reasonable  regulations  as 
they  may  prescribe.  And  cities  are  specially 
authorized  to  provide  for  the  laying  down  of 
gas  pipes.  But,  while  all  this  is  conceded,  it 
must  always  be  kept  in  nund  that  the  primary 
use  of  the  streets  is  not  for  the  laying  of  gas 
pipes.  That  is  but  an  incidental— a  secondary 
—use.  Above  all  other  uses  is  the  accommoda- 
tion of  the  public  travel.  Our  statute  (section 
2G40)  prescribes  the  city's  duty  thus:  "The 
council  shall  have  the  care,  supervision,  and 
control  of  all  public  highways,  streets,  ave- 
nues,    *     •     ♦     within  the  corporation,  and 


shall  cause  the  same  to  be  kept  open  and  in 
repair,  and  free  from  nuisance."  This  neces- 
sarily implies  the  duty,  as  well  as  the  right, 
to  grade,  in  order  that  the  streets  may  be  ac- 
cessible, convenient,  and  in  good  repair.  It 
also  implies  that  tlie  duty  as  well  as  the  right 
is  a  continuing  one.  The  duty  is  not  to  open 
tlie  sti-eets  aud  put  them  in  repair,  but  to  keep 
them  open  and  in  repair.  This  matter  of 
gi'ading  is  not,  necessarily,  a  single  operation. 
The  duty  of  exercising  the  power  anew,  there- 
fore, follows  the  changing  conditions  and 
neeils  of  the  public.  The  power  is  a  legisla- 
tive one.  It  is  to  be  enforced  by  ordinance. 
The  council  is  to  i)erform  the  duty,  and  it  is 
elementary,  we  suppose,  that  the  council  can- 
not, in  the  exercise  of  legislative  powers,  bind 
its  successors,  unless  authority  from  the  state 
to  do  so  is  clearly  indicated.  The  corpora- 
tion cannot  abridge  its  own  legislative  power. 
It  would  follow  from  this  that  in  prescribing 
regulations,  or  annexing  conditions,  by  the 
city,  to  the  exercise  by  a  gas  company  of  a 
right  in  a  street  to  enjoy  the  same  for  this 
secondaiy  use,  the  council  has  not  the  authoi'- 
ity  to  cede  away  nor  bargain  away  the  right 
of  the  city  to  perform  its  public  duties,  espe- 
cially as  to  a  primary  use  of  its  streets,  nor  to- 
abridge  the  capacity  of  its  successoi's  to  dis- 
charge those  duties,  unless  some  express  provi- 
sion of  statute  is  found  to  that  effect,  and  that 
is  not  claimed.  The  power  to  regrade,  and 
the  duty  of  exercising  the  power  under  proper 
conditions,  being  established,  does  liability  for 
damage  follow  its  exercise  in  such  a  case  as 
the  one  at  bai"?  If  it  can  be  maintained  that 
the  company  has  acquired  an  easement  giv- 
ing it  the  right  to  continue  its  pipes  at  the 
particular  place  in  the  street  where  they  were 
placed,  there  would  be  strong  reason  for  con- 
cluding that  liability  for  damage  would  follow 
their  disturbance  by  the  process  of  grading; 
otlierwise  not. 

It  is  insisted  that  the  easement  of  the  com- 
pany, acquired  by  the  grant  from  the  city,  is 
a  right  as  substantial  as  that  of  an  abutting 
owner,  and  that  its  right  to  compensatioii  for 
interference  with  piijcs  laid  in  conformity  with 
an  established  grade  is  as  well  founded  as 
that  of  an  owner  of  abutting  property  to  com- 
pensation for  an  interference  ailsing  in  the 
same  way.  There  are  some  points  of  similar- 
ity between  the  two  situations,  but  we  thiulc 
there  are  more  differences.  The  street  is  often 
dedicated  by  the  owner,  or  his  predecessor  in 
title,  to  public  use,  and,  if  acquired  by  appro- 
priation, he  is  liable  to  compulsory  contribu- 
tion for  payment  of  land  taken.  By  reason  of 
owning  tlie  abutting  laud,  he  has  a  property 
right  in  the  street  itself,  as  much  property  as 
his  lot.  Under  some  circumstances,  trees 
growing  in  the  street  in  front  of  his  lot  are  his 
property,  and  he  may  maintain  them  there, 
subject  only  to  the  free  use  of  the  street  by 
the  public.  In  case  of  abandonment,  the  title 
to  the  middle  of  the  highway  itself  ordinarily 
reverts  to  him.  Among  other  rights  is  that 
of  access  to  and  from  his  premises;  and  where 


174 


MUNICIPAL   ORDINANCES. 


he  has  improved  in  conformity  with  an  estab- 
lished grade,  the  damage  occasioned  by  a  ma- 
terial change  of  grade  is  immediate,  and  often 
1  serious.     A    marlied    difference   between   the 
/  two  rights  is  found  in  their  origin.     In  no  sin- 
I  ^  gle  particular  does  the  landowner  get  any  prop- 
1  erty  right  in   the  street   from   the  city.     No 
I  consideration  of  the  city's  power  is  brought  in 
\  question  in  estimating  the  character  of  the  lot 
\  owner's  right  in  the  street.     It  inheres  in  the 
I  very  ownership  of  the  lot,  as  an  incident  to  it. 
None  of   these  characteristics   attach   to  the 
'  couipauj^'s  easement.     In   no  sense  is  it  the 
\  owner  of  land  adjoining  the  highway.     A  fair 
construction  of  the  petition   makes   of  it  no 
more  than  a  naked  right  to  place  and  keep  its 
pipes  somewhere  in  the  street;    and  this,  we 
think,   is  the  extent   of  the  council's  power. 
An  ordinance  to  gi'ant  an  exclusive  right  or  a 
perpetual  right  to  occupy  a  particular  part  of 
the  street  would  be  an  attempt  to  bind  suc- 
ceeding councils  as  to  their  exercise  of  legisla- 
tive power,  and  would,  for  reasons  stated,  be 
ineffectual.     The  grant  by  the  city  must  be  in- 
terpreted in  the  light  of  the  right  and  duty  of 
the  city  to  regrade,  whenever  in  its  judgment 
the  public  interest  demands;    and   whatever 
easement  the  gas  company  can  receive,  it  must 
accept  and  enjoy  in  common  with  equivalent 
rights  which  have  been  or  may  be  acquired  by 
other   public  agencies,— rights  of  a   like   sec- 
ondary character;    and  all  must  give  way  to 
the  paramount  duty  of  the  city  to  care  for  the 


streets,  and  keep  them  open,  in  repair,  and  1 
convenient  for  the  general  public.     This  duty/ 
would  be  seriously  interfered  with  if  the  city  » 
could  not  change  the  grade  of  its  streets  save  1 
upon  the  condition  that  it  should  make  com-  / 
pensation  to  every  gas  company,  and  water 
company,  and  telephone  company,  and  elec-  I 
trie    light   company,    and   street-railway   com-  / 
pany,  for  inconvenience  and  expense  thereby 
occasioned.     All  such  agencies  must  be  held 
to  take  their  grants  from  the  city  upon  the 
condition,  implied  where  not  expressed,  that 
the  city  reserves  the  full  and  unconditional 
power  to  make  any  reasonable  change  of  grade 
or  other  improvement  in  its  streets. 

Attention  has  been  called  to  some  authori- 
ties which  seem  to  give  sanction  to  the  com- 
pany's claim  in  this  case,  but  we  are  impress- 
ed that  they  do  not,  in  this  respect,  express 
the  spirit  of  our  statutes  and  decisions.  On 
the  other  hand,  counsel  for  the  city  have  cited 
authorities  which  support  the  conclusions  here 
reached.  See  Dill.  Mun.  Corp.  hie  et  ibi; 
Lewis,  Em.  Dom.  §§  107,  109;  Goszler  v. 
Corporation  of  Georgetown,  6  Wheat.  593; 
City  of  Brenham  v.  Brenham  Water  Co.  (Tex. 
Sup.)  4  S.  W.  143;  Aqueduct  Corp.  v.  Brook- 
line,  121  Mass.  5;  In  re  Deering,  93  N.  Y.  361; 
Waterworks  v.  Kansas  City,  28  Fed.  921; 
Rockland  Water  Co.  v.  City  of  Rockland,  83  Me. 
267,  22  Atl.  166.  We  think  the  petition  does 
not  state  a  cause  of  action. 

Judgment  affirmed. 


VIOLATION  OF  FOURTEENTH  AMENDMENT. 


175 


STATE  V.  MAHNER  et  al.     (No.  10,730.) 

(9  South.  480,  43  La.  Ann.  496.) 

Supreme  Court  of  Louisiana.     April  13,  1891. 

Appeal  from  recorder's  court  of  New  Or- 
leans;  J.  U.  Landry,  Judge. 

A.  D.  Henriques  and  Branch  K.  Miller,  for 
appellants.  Henry  Keushaw,  Asst.  City 
Atty.  (Carleton  Hunt,  City  Atty.,  of  coun- 
sel), for  the  State. 

McENERY,  J.  The  defendants  were  pros- 
ecuted for  violating  ordinance  No.  3414  of 
the  city  of  New  Orleans,  convicted,  and 
fined.  This  ordinance  and  amended  grdi- 
nance  No.  3175  extended  the  limits  within 
which  dah-ies  were  prohibited.  The  defend- 
ants ask  that  the  ordinance  be  declared 
null  and  void,  because  it  is  not  general  in  its 
operation,  is  unconstitutional  and  oppres- 
sive. The  objectionable  feature  of  the  or- 
dinance is  contained  in  the  first  section. 
This  section  prescribes  the  limits  within 
which  dairies  may  be  conducted  by  permis- 
sion of  the  city  council,  and  it  is  made  un- 
lawful to  keep  more  than  two  cows  without 
a  permit  from  the  city  council.  The  de- 
fendants are  within  the  prohibited  limits, 
and  keep  more  than  two  cows.     The  ordi- 

I  nance  is  not  general  in  its  operation.  It  does 
not  affect  all  citizens  alike  who  follow  the 

V  same  occupation  which  it  attempts  to  regu- 
late.    It   is    only   those   persons    who   keep 

/   more  than  two  cows  in  the  prohibited  limits, 

I    without  the  permission  of  the  city  council, 

\  who  are  subjected  to  the  penalties  in  the  or- 
dinance.    The  discretion  vested  by  the  or- 

/  dinance  in  the  city  council  is  in  no  way 
regulated  or  controlled.     There  are  no  con- 

\    ditions   prescribed   upon   which   the   permit 

.  may  be  granted.  It  is  within  the  power  of 
the  city  council  to  grant  the  privilege  to 
some,  to  deny  it  to  others.     The  discretion 

\  vested  in  the  council  is  purely  arbitrary.  It 
may  be  exercised  in  the  interest  of  a  favored 

/  few.  It  may  be  controlled  by  partisan  con- 
siderations and  race  prejudices,  or  by  per- 
sonal animosities.  It  lays  down  no  rules  by 
which  its  impartial  execution  can  be  secured, 
or  partiality  and  oppression  prevented.  Yiek 
Wo  V.  Hopkins,  118  U.  S.  .TtC.  G  Sup.  Ct.  10C4; 
Horr  &  B.  Mun.  Ord.  §§  13.5,  13r..  It  was 
the  evident  intention  of  the  council,  in 
amending  ordinance  3175,  to  prohibit  dairies 
in  other  places  than  within  the  prescribed 
limits.  The  amended  ordinance  (section  3) 
gi-ants  12  months'  time  to  the  proprietors 
or  owners  of  all  dairies  now  in  existence, 
in  violation  of  the  amended  ordinance,  to 
move  their  dairies.  But,  as  the  amendment 
to  the  ordinance  only  extends  the  limits 
within  which  dairies  are  prohibited,  those 
who  have  them  in  pursuance  of  the  permis- 
sion from  the  mayor  are  exempt  from  its 
operations.  Section  4  of  ordinance  3414  is 
open  to  the  objections  above  stated.  It  is 
as  follows:    "That  henceforth  no  new  dairies 


keeping  more  than  two  cows  shall  be  estab- 
lished within  the  limits  above  named,  under 
the  same  penalties  as  are  now  in  force  un- 
der existing  ordinances."  This  section  es- 
tablishes an  inequality,  granting  to  some  per- 
sons, following  the  same  occupation,  privi- 
leges that  are  not  extended  to  others.  The 
ordinances  do  not  regulate  dairies  in  the 
interest  of  the  public  health.  One  dairy 
may  be  a  nuisance  because  the  city  council 
has  refused  to  give  the  required  permission 
for  its  establishment;  another  may  be  per- 
fectly harmless,  and  in  no  way  detrimental 
to  public  health,  because  it  exists  by  permis- 
sion of  the  council.  They  may  exist  along- 
side of  each  other,  both  unobjectionable  in 
their  police  regulations,  and  one  a  nuisance 
and  the  other  a  lawful  establishment.  Both 
the  original  and  amended  ordinances  violate 
equal  rights  among  the  class  they  are  de- 
signed to  affect,  and  are  therefore  neces- 
sarily void,  so  far  as  they  do  so.  This  opin- 
ion in  no  way  conflicts  with  the  views  ex- 
pressed in  the  case  of  State  v.  Gisch,  31  La. 
Ann.  o4ri.  In  that  case  the  ordinance  regu- 
lated private  markets  in  pursuance  of  ex- 
press legislative  enactment,  by  imposing  a 
license  upon  them  when  they  were  conducted 
in  certain  localities.  The  ordinance  affected 
all  persons  alike  who  were  engaged  in  the 
same  occupation,  and  was  free  from  the  ob- 
jections in  the  ordinances  under  considera- 
tion. Nor  does  this  opinion  conflict  with 
the  opinion  and  decree  in  the  case  of  Bozant 
V.  Campbell,  9  Rob.  (La.)  411,  in  which  tlie 
court  was  called  on  to  deal  with  a  municipal 
ordinance  prohibiting  the  establishment  of 
private  hospitals  within  certain  limits.  The 
court  held  that,  as  the  council  had  a  right 
to  repeal  the  ordinance,  it  could  do  so  par- 
tially, and  modify  it  so  as  to  permit,  in  ex- 
ceptional cases,  the  erection  of  private  hos- 
pitals within  the  prohibited  limits.  The  in- 
stant case  does  not  present  the  same  feat- 
ures. In  the  exercise  of  its  powers  in  the 
interest  of  the  public  health,  the  court  said 
the  council  of  the  municipality  had  prudent- 
ly exercised  it.  It  is  therefore  adjudged  and 
decreed  that  the  judgment  appealed  from  be 
annulled,  avoided,  and  reversed,  and  the  suit 
of  the  city  against  the  defendants  be  dis- 
missed, with  costs  of  both  courts. 

On    Rehearing. 

(April  27,  1891.) 

The  city  attorney  asks  for  a  rehearing  in 
this  case.  In  the  brief  for  the  rehearing  the 
city  attorney  says:  "But  should  your  hon- 
ors determine  that  the  question  involved 
herein  is  to  be  determined  upon  a  possible 
instead  of  an  actual  case,  we  respectfully 
submit  that  your  honors'  decree  should  go 
no  further  than  to  declare  null  the  clause 
providing  for  previous  permission  from  the 
city  council."  We  cannot  conceive  of  a 
more  actual  case  for  determination  than  one 
wherein  the  defendant  has  been  tried,  con- 


176 


MUNICIPAL  ORDINANCES. 


victed,  and  sentenced  for  the  violation  of 
the  ordinance  under  consideration.  The  or- 
dinance made  it  an  offense  for  Iceeping  a 
dairy  within  prohibited  limits  without  per- 
mission from  the  city  council.  We  did  not 
consider  the  right  or  power  of  the  city  to 
prohibit  dairies  within  the  city  limits.  This 
power  is  undoubted,  when  exercised  in  the 
interest  of  the  public  health.  We  distinctly 
asserted  in  the  opinion  that  this  ordinance 
was  not  enacted  in  the  interest  of  public 
health.  The  permission  to  keep  dairies 
within  the  limits,  we  said,  negatived  this 
view.  It  is  true  that  a  portion  of  an  or- 
dinance may  be  objectionable,  and  the  other 
portions  may  be  good,  and  in  such  cases 
that  which  is  good  remains.  What  was  the 
offense  denounced  in  the  ordinance?    Keep- 


ing a  dairy  within  certain  prohibited  limits 
without  permission.  Dairies  were  prohibit- 
ed within  certain  limits  without  the  per- 
mission of  the  city  council.  The  city  coun- 
cil could,  under  the  ordinance,  permit  as 
many  dairies  as  they  desired  within  the  pro- 
hibited limits.  As  stated,  the  offense  is 
keeping  a  dairy  without  permission.  Strike 
this  out,  and  there  would  be  no  penalty. 
Therefore  the  permissive  part  of  the  ordi- 
nance was  an  essential  and  connected  part 
of  it,  without  which  it  would  be  only  a  pro- 
hibition. To  declare  the  permissive  part 
void,  and  to  state  that  the  penalty  should 
remain,  would  be  on  our  part  legislation. 
It  would  be  amending  and  re-enacting  the 
ordinance.  This  is  the  business  of  the  city 
council. 


yiOLATIOX  OF  FOURTEENTH  AMENDMENT. 


177 


In  re  GARRABAD. 

(54  N.  W.  1104,  84  Wis.  585.) 

Suprome  Court  of  Wisrnnsin.    April  11,  1S03. 

Application  by  Joseph  Garrabad  for  a  writ 
of  liabeas  corpus,  and  to  be  discharged  from 
tlie  custody  of  tlie  sheriff.  A  demiu-ror  to 
the  return  of  the  sheriff  was  ovorrnled, 
and  petitioner  by  certiorari  brings  up  the 
order  for  review.  Order  reversed,  and  pe- 
titioner discharged. 

Tlie  other  facts  fidly  appear  in  the  follow- 
ing statement  by  PINNEY,  J.: 

This  is  a  proceeding  bj'  certiorari  to  re- 
view the  decision  of  C.  L.  Bering,  court 
commissioner  of  Columbia  county,  in  the 
matter  of  his  refusal  to  discharge  the  pe- 
titioner, Joseph  Garrabad,  from  custody, 
and  remanding  him  to  the  imprisonment  of 
whicli  he  complains.  It  appears  from  the 
return  of  the  sheriff  of  Columbia  county 
to  the  writ  of  habeas  corpus  issued  by  the 
commissioner  that  on  the  2Ttli  day  of  Feb- 
ruary, 1893,  the  petitioner  was  placed  in 
his  custody,  and  was  held  therein,  under  and 
by  virtue  of  an  execution  or  so-called  "com- 
mitment," issued  by  V.  Helman,  a  justice 
of  the  peace  of  the  city  of  Portage,  in  said 
county,  reciting  that  the  city  of  Portage 
had  recovered  a  judgment  before  said  jus- 
tice against  the  petitioner  for  the  sum  of 
$5,  together  with  $13.85  costs  of  suit,  for 
the  violation  of  an  ordinance  of  said  city, 
to  wit,  Xu.  ll-'4,  entitled  "An  ordinance  to 
regulate  street  parades  and  insure  public 
safety,"  and  commanding  the  sheriff  or  any 
constable  of  the  county  to  levy  the  same 
on  the  goods  and  chattels  of  the  said  pe- 
titioner, except  such  as  the  law  exempts, 
and,  in  default  thereof,  to  take  his  body, 
and  him  convey  and  deliver  to  the  keeper 
of  the  common  jail  of  Columbia  county, 
to  be  there  kept  in  custody  for  the  term  of 
20  days,  unless  said  judgment  with  costs 
was  sooner  paid,  or  he  should  be  discharged 
by  due  course  of  law.  The  ordinance  in 
question  provides  that  "it  shall  be  unlaw- 
ful for  any  person  or  persons,  society,  asso- 
ciation, or  organization,  under  whatsoever 
name,  to  march  or  parade  over  or  upon" 
certain  streets  (therein  named)  in  the  city 
of  Portage,  "shouting,  singing,  or  beating 
drums  or  tambourines,  or  playing  upon  any 
other  nmsical  instrument  or  instruments, 
for  the  purpose  of  advertising  or  attracting 
the  attention  of  the  public,  or  to  the  dis- 
turbance of  the  public  peace  or  quiet,  with- 
out lirst  having  obtained  a  permission  to 
so  march  or  parade,  signed  by  the  mayor 
of  said  city.  In  case  of  illness  or  absence- 
of  the  mayor  or  other  officer  hereby  des- 
ignated of  the  city,  such  permission  may  be 
granted  and  signed  by  the  president  of  the 
comicil,  city  clerk,  or  marshal,  in  the  order 
named:  provided,  that  this  section  shall  not 
apply  to  funerals,  fire  companies,  nor  reg- 
ularly organized  companies  of  the  state  mi- 
litia: and  provided,  further,  that  permis- 
sion to  march  or  parade  shall  at  no  time  be 
ABB.CUKP.— 12 


refused  to  any  political  party  having  a  reg- 
ular state  organization.  Any  person  vio- 
lating any  of  the  provisions  of  this  ordi- 
nance shall,  upon  conviction  thereof,  be 
fined  in  a  sum  not  less  than  two  dollars 
or  more  than  ten  dollars."  The  second  sec- 
tion provided  that  the  marshal  should  ac- 
company such  person  or  persons  receiving 
permission  while  upon  the  portion  of  tlie 
streets  described,  to  preserve  order,  warn 
the  owners  of  horses  upon  said  portions  of 
said  streets,  and  to  careftdly  preserve  the 
public  safety;  and  when  such  permission  is 
given  by  any  officer  other  than  the  mar- 
shal, that  he  should  forthwith  notify  the 
mnrshal  of  the  granting  of  the  same.  The 
sheriff  further  returned  that  "the  central  part 
of  the  business  portion  of  the  city  of  I'ort- 
age  is  contained  within  the  limits  defined 
in  the  ordinance,  and  the  streets  therein 
referred  to  were  narrow,  and  cross  and  en- 
ter each  other  at  various  angles,  and  there 
was  a  great  deal  of  traffic  over  the  same, 
and  that  the  petitioner  had  been  duly  and 
lawfully  convicted  of  a  willful  violation  of 
said  ordinance  upon  trial  duly  and  legally 
had."  The  petitioner  demurred  to  the  re- 
turn, and  the  commissioner  overniled  the 
demurrer,  and  ordered  that  he  be  remand- 
ed to  the  custody  of  the  sheriff,  to  be  con- 
fined in  the  county  jail  of  said  comity,  ac- 
cording to  the  terms  of  said  execution. 

Rogers  &  HaU,  for  relator,  Garrabad.  W. 
S.  Stroud,  for  court  commissioner,  C.  L. 
Dering. 

PINNEY,  J.,  (after  stating  the  facts.)  The 
city  charter  of  the  city  of  Portage  (Laws 
1882,  c.  132,  §  31)  confers  upon  the  common 
councU  of  the  city  power  to  pass  ordinances 
and  by-laws  on  certain  subjects,  under  and 
by  virtue  of  the  delegation  of  the  pohce 
powers  of  the  state  to  the  common  council 
and  city  officers  for  the  government  of  the 
city,  and  the  preservation  of  order  and  pub- 
lic safety.  In  respect  to  such  ordinances  or 
by-laws  it  has  long  been  the  established  doc- 
trine that  they  must  be  reasonable,  not  in- 
consistent vnth  the  charter  nor  with  any 
statute,  nor  with  the  general  principles  of 
the  common  law  of  the  land,  particularly 
those  having  relation  to  the  liberty  of  the 
subject  or  the  rights  of  private  property. 
Dill.  Mun.  Corp.  §  319,  and  cases  cited  in 
notes.  The  particular  objections  tu-ged  to  i 
the  validity  of  the  ordinance  in  question  fall  f 
within  the  scope  of  the  fourteenth  amend- 
ment to  the  constitution  of  tlie  United  States,  ' 
which  provides  that  "no  state  shall  make 
or  enforce  any  law  which  shall  abridge  the 
privileges  or  immunities  of  citizens  of  the 
United  States,  nor  shall  any  state  deprive 
any  person  of  life,  liberty,  or  property,  with- 
out due  r)rocess  of  law.  nor  deny  to  any  per- 
son within  its  jurisdiction  the  equal  protec- 
tion of  the  laws."  These  provisions  apply  , 
e<iually  to  all  pei-sons  within  the  territorial 
juiisdicliou  of  the  United  States,  without  re- 


178 


MUNICIPAL  OKDINANCES. 


/  gard  to  any  differences  of  color  or  national- 

'  ity;   and  the  equal  protection  of  ttie  laws  is 

a  pledge,   it  is  held,   "of  the  protection  of 

equal  laws."    Yick  Wo  v.   Hopliins,   118  L. 

S.  369,  6  Sup.  Ct.  Kep.  10G4. 

It  is  objected  tliat  the  ordinance  is  void 
on  its  face,  by  reason  of  its  operating  une- 
qually and  creating  an  unjust  and  illegal  dis- 
crimination, not  only  (1)  by  the  express 
terms  of  the  ordinance  itself,  but  (2)  it  is 
so  framed  as  to  punish  the  petitioner  for 
what  is  permitted  to  othei*s  as  lawful,  with- 
out any  distinction  of  circumstances,  where- 
by an  imjust  and  Ulegal  discrimination  oc- 
curs in  its  execution,  and  which,  though  not 
made  by  the  ordinance  in  express  terms,  is 
made  possible  by  it;  (3)  in  that  it  vests  in 
the  mayor,  or  other  officers  of  the  city  named 
in  it,  power  to  arbitrarily  deny  persons  and 
other  societies  or  organizations  tlie  riglit  se- 
cured by  it  to  others  to  march  and  parade 
on  the  sti-eets  named.  The  general  subject 
and  scope  of  the  ordinance  is  marching  or 
parading  by  "any  person  or  persons,  society, 
as.sociation,  or  organization"  over  the  streets 
named,  "sliouting,  singing,  or  beating  drums 
or  tambourines,  or  playing  upon  any  musical 
instl-ument  or  instraments,  for  the  purpos<- 
of  advertising  or  attracting  the  attention  ol 
the  public,  or  to  the  disturbance  of  the  pu^)- 
lic  peace  or  quiet,"  witliout  having  obtained 
permission  as  prescribed  m  the  ordinance. 
It  provides,  among  other  things,  that  the 
ordinance  shall  not  apply  to  tire  companies, 
nor  to  regularly  organized  companies  of  the 
state  militia,  and  that  permission  to  march 
or  parade  shall  at  no  time  be  refused  to  any 
political  party  having  a  regular  state  or- 
ganization. The  permission,  it  wUl  be  seen, 
Is  required  absolutely  to  be  granted  to  politi- 
cal parties  having  a  regular  state  organiza- 
tion, so  they  are  practiially  excepted  out  of 
the  ordinance.  T\'lietlier  permission  sliall  be 
granted  to  any  other  society,  civic,  religious, 
or  otherwise,  depends,  not  upon  the  charac- 
ter of  the  organization,  or  upon  the  particiilar 
circumstances  of  the  case,  but  upon  the  arbi- 
trary discretion  of  the  mayor  or  other  offi- 
cers named  in  the  ordinance,  acting  m  his 
absence.  It  is  therefore  argued  that,  as  be- 
tween different  persons,  societies,  associa- 
tions, or  organizations,  the  ordinance  oper- 
ates unequally,  and  creates  unjust  and  ille- 
giil  discriminations  by  its  express  terms,  and 
malies  such  discriminations  not  only  possi- 
ble, but  necessai'y  in  its  administration,  and 
therefore  that  the  ordinance  is  void  upon 
common-law  principles,  as  heretofore  recog- 
nized and  administered  in  the  courts  of  tlie 
country.  The  rights  of  persons,  societies,  and 
organizations  to  parade  and  have  processions 
on  the  streets  witli  music,  bannei's,  songs, 
and  shouting,  is  a  well-established  right,  and, 
Indeed,  the  ordinance  upon  its  face  recogniz- 
es to  a  certain  extent  the  legality  of  such 
processions  and  parades,  and  provides  for 
permitting  them,  in  the  discretion  of  the 
mayor,  in  all  cases  except  those  named,  and 


as  to  those  the  right  is  practically  secured. 
The  ordinance,  as  framed,  and  as  it  is  to  be  I 
executed  under  the  arbitrary  discretion  of  / 
the  mayor  or  other  officer,  is  clearly  an  i 
abridgment  of  the  rights  of  the  people;  and  ( 
in  many  cases  it  practically  prevents  those  i 
public  demonstrations  that  are  the  most  nat-  I 
nral  product  of  common  aims  and  kindred 
pm-poses.  "It  discourages  united  effort  to 
attract  pubhc  attention  and  challenge  public 
examination  and  criticism  by  associated  pux'- 
poses."  Anderson  v.  City  of  Wellington, 
(Kan.)  19  Pac.  Rep.  719,  contains  a  careful 
discussion  and  examination  of  a  similar  ordi- 
nance, which  was  there  held  to  be  void  as 
contravening  common  right.  In  Re  Frazee, 
63  Mich.  396,  30  N.  W.  Rep.  72,  after  full  dis- 
cussion by  Campbell,  C.  J.,  a  similar  ordi- 
nance was  also  held  void,  and  that  it  is  not 
in  the  power  of  the  legislatm-e  to  deprive 
any  of  the  people  of  the  enjoyment  of  equal 
privileges  mader  the  law,  or  to  give  cities 
any  tyrannical  powers;  that  charters,  laws, 
and  regulations,  to  be  vahd,  must  be  capable 
of  construction,  and  must  be  construed,  in 
conformity  to  constitutional  principles,  and 
in  hai-mony  with  the  general  laws  of  the 
land;  and  that  any  by-law  which  violates 
any  of  the  recognized  principles  of  lawful 
and  equal  rights  is  necessailly  void  so  far  as 
it  does  so,  and  void  entirely  if  it  cannot  be 
reasonably  applied  according  to  its  terms; 
and  no  grant  of  absolute  discretion  to  sup- 
press lawful  action  can  be  sustained  at  all; 
that  it  is  a  fundamental  condition  of  aU  lib- 
erty, and  necessary  to  civil  society,  that  men 
must  exercise  their  rights  in  harmony  with, 
and  yield  to  such  restrictions  as  are  neces- 
saiy  to  pi-oduce,  peace  and  good  order;  and 
it  is  not  competent  to  make  any  exceptions 
for  or  against  the  so-called  "Salvation 
Army"  because  of  its  theories  concerning 
practical  work;  that  in  law  it  has  the  same 
right,  and  is  subject  to  the  same  restrictions, 
m  its  public  demonstrations,  as  any  secular 
body  or  society  which  uses  similar  means 
for  drawing  attention  or  creating  interest. 
Hence  the  by-law  there  in  question,  because 
it  suppressed  what  was  in  general  perfectly 
lawfid,  and  left  the  power  of  permitting  or 
restraining  processions  and  their  coui-ses  to 
an  imlawfid  official  discretion,  was  held 
void;  and  that  any  regulation,  to  be  valid, 
must  be  by  permanent  legal  provisions,  oper- 
ating generally  and  impartially.  The  return 
of  the  sheriff"  utterly  fails  to  show  of  what 
specific  offense  the  petitioner  was  convicted; 
that  is  to  say,  in  what  particular  respect  he 
violated  the  ordinance.  We  may  infer,  how- 
ever, for  the  pui'pose  of  argument  and  illus- 
tration, from  the  fact  that  the  petition  for 
the  writ  addressed  to  this  court  states  that 
the  petitioner  is  a  member  of  the  Salvation 
Army,  that  he  was  convicted  of  parading  the 
streets  in  that  capacity.  It  cannot  be  main-  \ 
tained  that  anj'  person  or  persons  or  society 
have  any  right  for  religious  puiposes  or  as  1 
rehgious  bodies  to  use  the  streets  for  pur-  / 


VIOLATION  OF  FOURTEENTH  AMENDMENT. 


179 


poses  of  public  parade  becaiLse  the  piirpose 
in  view  is  purely  religious,  and  not  secular, 
but  they  certainly  have  the  same  right  to 
equal  protection  of  the  laws  as  secular  or- 
ganizations. The  objections  urged  against 
this  ordinance  are,  we  tliink,  fatal  to  any 
conviction  which  might  take  place  under  it 
by  reason  of  its  unreasonable  and  imjust  dis- 
criminations, and  of  the  arbitrary  power 
conferred  upon  the  mayor  or  other  othcer  of 
the  city  to  make  others  in  its  administration 
and  execution;  so  that  it  is  impossible  to 
sustain  the  conviction  m  anj-  aspet^'t  in  whicl) 
the  question  may  be  viewed. 

A  careful  examination  of  the  decisions  in 
various  states,  and  the  considerations  upon 
which  they  are  founded,  is  not  material  to 
the  determination  of  the  case,  for  the  whole 
subject  is  governed  and  controlled  by  the 
provisions  of  the  fomteenth  amendment  to 
the  constitution  of  the  United  States,  al- 
ready referred  to.  In  construing  and  ap- 
plying this  amendment,  the  supreme  court 
of  the  United  States  have  said  in  Barbier 
V.  Connolly,  113  U.  S.  27,  5  Sup.  Ct.  Rep. 
S.j7,  that  it  "undoubtedly  Intended  not  only 
that  there  should  be  no  arbitrary  depriva- 
tion of  life  or  liberty,  or  arbitrary  spolia- 
tion of  property,  but  that  equal  protection 
and  security  should  be  given  to  all  under 
lilce  circumstances  in  the  enjoyment  of  their 
personal  and  civil  rights;  that  all  persons 
should  be  equally  entitled  to  pursue  their 
happiness,  and  acquire  and  enjoy  property; 
that  they  should  have  like  access  to  the 
coin-ts  of  the  coimtry  for  the  pi'otection  of 
their  persons  and  property,  the  prevention 
and  redress  of  wrongs,  and  the  enforce- 
ment of  contracts;  that  no  impediment 
should  be  Interposed  to  the  pursuits  of  any 
one  except  as  applied  to  the  same  pursuits 
by  others  under  like  circumstances;  that 
no  greater  burdens  should  be  laid  upon  one 
than  are  laid  upon  others  m  the  same  call- 
ing and  condition.  *  *  *  Class  legislation 
discriminating  against  some  and  favoring 
others  is  proliibited,  but  legislation  which, 
in  carrying  out  a  public  purpose,  is  lim- 
ited in  its  application  If  within  the  sphere 
of  its  operation  it  affects  alike  all  persons 
similarly  situated,  is  not  within  the  amend- 
ment." The  entire  subject  underwent  care- 
ful examination  in  the  case  of  Yick  Wo  v. 
Hopkins,  118  U.  S.  3-36,  6  Sup.  Ct.  Rep. 
10G4,  where  the  subject  of  city  ordinances 
and  the  principles  regulating  their  validity 
were  considered.  The  objections  to  the 
validity  of  the  ordinances  in  that  case  were, 
in  substance,  the  same  that  are  urged  in 
this,  and  the  ordinances  in  question  were 
held  void.  Tlie  objections  urged  La  the  case 
of  City  of  Baltimore  v.  Radecke,  49  Md. 
217,  were  also,  in  substance,  the  same,  for 
the  ordinance  in  that  case  upon  its  face 
committed  to  the  imrostrained  will  of  a 
single  public  officer  the  power  to  determine 
the  rights  of  parties  under  it,  whon  there 
was  nothing  in  the  ordinance  to   guide  or 


control  liis  action,  and  it  was  held  void  be- 
cause "it  lays  down  no  rules  by  which  it3 
impartial  execution  can  be  secured,  or  par- 
tiality and  oppression  prevented,"  and  that 
"wlien  we  remember  that  action  or  non- 
action may  proceed  from  enmity  or  preju- 
dice, from  partisan  zeal  or  animosity,  from 
favoritism  and  other  improper  influences 
and  motives  easy  of  concealment  and  diffi- 
cult to  be  detected  and  exposed,  it  becomes 
unnecessary  to  suggest  or  to  comment  upon 
the  Injustice  capable  of  being  wrought  vm- 
der  cover  of  such  a  power,  for  that  be- 
comes apparent  to  every  one  who  gives  to 
the  subject  a  moment's  consideration.  In 
fact,  an  ordinance  which  clothes  a  single 
Individual  with  siich  power  hardly  falls 
within  the  domain  of  law,  and  we  are  con- 
strained to  pronoimce  it  inoperative  and 
void."  The  doctrine  of  this  case  was  ap- 
proved in  Yick  Wo  v.  Hopkins,  supra,  and 
the  court  m  the  latter  case  observed:  "We 
are  not  obliged  to  reason  from  the  probable 
to  the  actual,  and  pass  upon  the  validity 
of  the  ordinances  complained  of,  as  tried 
merely  by  the  opportunities  which  their 
terms  affoi'd,  of  unequal  and  unjust  dis- 
crimination ra  their  administration;"  and 
proceeded  to  show  that  in  the  case  there 
presented  the  ordinances  in  actual  opera- 
tion established  "an  administration  direct- 
ed so  exclusively  against  a  particular  class 
of  persons  as  to  warrant  and  require  the 
conclusion  that,  whatever  may  have  been 
the  intent  of  the  ordinances  as  adopted, 
they  Avere  applied  by  the  public  authori- 
ties charged  witli  their  administration,  and 
thus  representing  the  state  itself,  with  a 
mind  so  unequal  and  oppressive  as  to 
amovmt  to  a  practical  denial  by  the  state 
of  that  equal  protection  of  the  laws  which 
is  secured  to  the  petitioners,  as  to  all  other 
persons,  by  the  broad  and  benign  provi- 
sions of  the  fourteenth  amendment  to  the 
constitution  of  the  United  States;"  and  the 
court  added:  "Though  the  law  itself  be  fair 
on  its  face,  and  impartial  in  appearance, 
yet  if  it  is  applied  and  admmistered  by  pub- 
lic authority  with  an  evil  eye  and  an  un- 
equal hand,  so  as  to  practically  make  vm- 
just  and  iUegal  discriminations  between  per- 
sons in  similar  circumstances,  material  to 
their  rights,  the  denial  of  equal  justice  is 
still  within  the  prohibition  of  the  consti- 
tution." 

Nearly  all  the  processions,   parados,   etc.. 
that  ordintirily  occur  are  excepted  from  th(> 
ordinance  in  question,  followed  by  a  provi- 
sion  that    p.^u-mission    to    march    or   parade 
shall  at  no  time  "be  refused  to  any  polit- 
ical party  having  a  regular  state  organiza- 
tion."    It  is   difficult   to   see   how   this   can  ^ 
be  considered  municipal  li-gislation.  dictated 
by  a  fair  and  equal  mind,  which  takes  care  f 
to  protect  and  provide  for  the  parades  and  / 
processions  A^ith  trumpets,  drums,  banners, 
and    all    the    accompaniments    of    political   ' 
tm-nouts  and  processions,  and  at  the  same  / 


180 


MUNICIPAL   ORDINANCES. 


time  provides,  in  effect,  that  the  Salratioii 
Army,  or  a  Sunday  school,  or  a  temperance 
organization  with  music,  banners,  and  de- 
Tices,  or  a  lodge  of  Odd  Fellows  or  Ma- 
sons, shall  not  in  like  manner  parade  or 
march  in  procession  on  the  streets  named 
Avithout  getting  permission  of  the  mayor, 
and  that  it  shall  rest  within  the  arbitraiy, 
uncontrolled  discretion  of  this  officer  wheth- 
er they  shall  have  it  at  all.  The  ordinance 
resembles  more  nearly  the  means  and  in- 
strumentalities frequently  resorted  to  in 
practicing  against  and  upon  pei'sons,  socie- 
ties, and  organizations  a  petty  tyranny,  the 
result  of  prejudice,  bigotiy,  and  intoler- 
ance, than  any  fair  and  legitimate  provi- 
sion in  the  exercise  of  the  police  power  of 
the  state  to  protect  the  public  peace  and 
safety.  It  is  entirely  im-American,  and  in 
conflict  with  the  principles  of  our  institu- 
tions and  all  modem  ideas  of  civil  Uberty. 
It  is  susceptible  of  being  applied  to  offen- 
sive and  improper  uses,  made  subversive 
of  the  rights  of  private  citizens,  and  it 
interfei-es  with  and  abridges  their  priv- 
ileges and  immunities,  and  denies  them 
the  equal  protection  of  the  laws  in 
the  exercise  and  enjoyment  of  their  un- 
doubted rights.  In  the  exercise  of  the  po- 
lice power,  the  common  council  may,  ia 
its  discretion,  regulate  the  exercise  of  such 
rights  in  a  reasonable  manner,  but  can- 
not suppress  them,  directly  or  iudirectly, 
by  attempting  to  commit  the  power  of  do- 
ing so  to  the  mayor  or  any  other  officer. 
The  discretion  with  which  the  council  is 
vested  is  a  legal  discretion,  to  be  exercised 
vsithin  the  hmits  of  the  law,  and  not  a  dis- 
cretion to  transcend  it  or  to  confer  upon  any 


city  officer  an  arbitrary  authority,  maldng 
him  in  its  exercise  a  petty  tyrant.  Such 
ordinances  or  regulations,  to  be  valid,  mxist 
have  an  equal  and  imiform  application  to 
all  persons,  societies,  or  organizations  sim- 
ilarly circumstanced,  and  not  be  suscepti- 
ble of  mijust  discriminations,  which  may  be 
arbitrarily  practiced  to  the  hurt,  prejudice, 
or  annoyance  of  any.  An  ordinance  which 
expressly  secures  to  political  parties  hav- 
ing state  organizations  the  absolute  right 
to  street  parades  and  processions,  with  all 
their  usual  accompaniments,  and  denies  It 
to  the  societies  and  other  lUve  organizations 
already  mentioned,  except  by  permission  of 
the  mayor,  who  may  arbitrarily  refuse  it, 
is  not  valid,  and  offends  against  all  well- 
established  ideas  of  civil  and  religious  lib- 
erty. The  people  do  not  hold  rights  as 
important  and  well  settled  as  the  right  to 
assemble  and  have  public  parades  and  pro- 
cessions with  music  and  banners  and  shout- 
ing and  songs,  in  support  of  any  laudable  or 
lawful  cause,  subject  to  the  power  of  any 
public  officer  to  interdict  or  prevent  them. 
Our  government  is  "a  government  of  laws, 
and  not  of  men,"  and  these  priuciples,  well 
established  by  the  courts,  by  the  fourteenth 
amendment  to  the  constitution  of  the  Unit- 
ed States,  have  become  a  part  of  the  su- 
preme law  of  the  land,  so  that  no  officer, 
body,  or  lawful  authority  can  "deny  to  any 
person  the  equal  protection  of  the  laws." 
It  is  plain  that  the  ordinance  in  question  is 
Ulegal  and  void,  and  for  this  reason  the 
order  of  the  commissioner  must  be  reversed. 
The  order  of  the  court  commissioner  is  re- 
versed, and  the  petitioner  ordered  dis- 
charged. 


CONSISTENCY  WITH  GENERAL  LAWS. 


181 


STATE  V.  SHERAKD. 
(23  S.  E.  157,  117  N.  C.  71G.) 
Suprome  Court  of  North  Carolina.    Nov.  5,  1S95. 
Appeal  from  superior  court,  Wayne  couuty; 
Starbuck,  Judge. 

Jolin  V.  Slierard  was  convicted,  under  a  city 
ordinance,  of  disorderly  conduct,  and  appeals. 
Afflnuod. 

T.  R.  rurnell,  for  appellant.  The  Attorney 
General,  for  the  State. 

CLARK,  J.  The  defendant  was  tried  for 
breach  of  the  following  city  ordinance: 

"Sec.  2.  That  all  disorderly  conduct  ♦  •  • 
within  the  city  limits  shall  subject  the  of- 
fender to  a  fine  of  §10  for  each  offence. 

"Sec.  3.  That  if  any  person  shall  commit  a 
breach  of  the  peace  or  engage  in  any  riotous 
or  disorderly  conduct  within  the  limits  of  the 
city  he  shall  pay  a  fine  of  $50,  provitled  that 
this  section  shall  not  be  construed  to  relieve 
the  mayor  from  the  duty  of  binding  over  the 
offender,  according  to  law,  if  the  offence  is 
one  properly  triable  before  a  higher  court." 

The  ordinances  are  valid  under  the  ruling  in 
several  cases  that  the  town  may  forbid,   by 
ordinance,   "disorderly  conduct"   which,   from 
the  evidence,  did  not  amount  to  an  indictable 
nuisance,   or  other  offense  forbidden   by    the 
i  general  law  of  the  state.     State  v.  Cainan,  94 
N.  C.  8S0;    State  v.  Debnam,  98  N.  C.  712,  3 
S.  E.  7-12;    State  v.  Warren,  113  N.  C.  683,  18 
S.  E.  498;    State  v.  Horne,  115  N.  C.  739,  20  S. 
I  E.  443.     Disorderly  conduct,  per  se,  is  not  for- 
/  bidden  by  the  general  state  law.     There  are 
acts  amounting  to  disorderly   conduct   which 
)  come  under  the  ban  of  the  general  law,  and 
I    there  are  other  acts,  not  amounting  to  criminal 
offenses  against  the  state,  which  would  also 
/  be  disorderly  conduct.     To  this  latter  class  of 
I   cases  do  city  ordinances  against  disorderly  con- 
duct apply.     In  State  v.  Cainan,  supra,  Merri- 
mon,  J.,  says  of  a  somewhat  similar  ordinance, 


"The  ordinance  has  reference  to,  and  forbids, 
such  acts  and  conduct  of  persons  as  are  of- 
fensive and  deleterious  to  society,  particularly 
in  dense  populations,  as  in  cities  or  towns,  but 
which  do  not,  per  se,  constitute  criminal  of- 
fenses, under  the  general  law  of  the  state." 
The  same  is  repealed  and  elaborated  in  State 
V.  Debnam.  The  court  told  the  jury  that  if 
they  were  satisfied,  beyond  a  reasonable  doubt, 
that  the  defendant  used  the  language  testified 
to  by  the  witness  Burnett  (the  only  witness  for 
the  state  as  to  the  language  used)  in  a  public 
restaurant,  in  a  violent  and  abusive  manner, 
and  in  a  voice  so  loud  that  it  could  have  been 
heard  on  the  street,  the  defendant  was  guilty, 
and  that  it  made  no  difference  if  he  uttered  a 
profane  expression  but  a  single  time,  provided 
it  was  uttered  in  the  manner  described.  This 
brings  the  proscmt  case  so  exactly  under  the 
ruling  in  State  v.  Debnam  and  State  v.  Cainan, 
supra,— the  facts  in  those  cases  being  very  sim- 
ilar to  those  in  this,— that  no  further  discussion 
is  needed.  His  honor  further  charged  that,  if 
the  facts  were  as  testified  to  by  the  defend- 
ant, he  was  not  guilty.  Both  the  prosecuting 
witness  and  the  defendant  testified  that  the 
ktter  called  the  witness  "a  damned  high- 
way robber."  His  honor  correctly  held  that 
this  and  the  other  language  testified  to  by 
Burnett,  if  used  in  the  loud  and  boisterous 
manner  he  stated,  would  make  the  defendant 
guilty.  Such  conduct  is  not  amenable  to  the 
state  law,  for  the  language  was  not  so  repeated 
and  so  public  as  to  become  a  nuisance  to  the 
public.  State  r.  Jones,  31  N.  C.  38.  It  was 
properly  cognizable  only  under  the  town  ordi- 
nance. Such  conduct  as  that  testified  to  by  j 
the  prosecuting  witness  is  not  prohibited  by 
the  general  state  law,  yet  it  would,  if  it  could 
not  be  punished  by  city  ordinance,  become  a  ' 
serious  annoyance  to  the  public  passing  along 
the  streets,  hearing  such  loud,  boisterous,  and 
unseemly  language,  and  threats  of  violence.  No 
error. 


182 


MUNICIPAL  ORDINANCES. 


HA  WES  et  al.  v.  CITY  OF  CHICAGO. 

(42  N.  E.  373,   158  111.  653.) 
Supreme  Court  of  Illinois.    Nov.   1,   1895. 

Appeal  from  Cook  county  court;  George 
W.  Brown,  Judge. 

Petition  by  the  city  of  Chicago  for  confir- 
mation of  a  special  assessment.  John  H. 
Dunham  filed  objections,  which  were  over- 
ruled. He  having  thereafter  died,  his  heir: 
and  devisees,  Helen  E.  Dunham  Hawes  an<' 
Mary  V.  Dunham,  appeal.     Reversed. 

Kirk  Hawes  and  I.  J.  Geer,  for  appellants 
J.  D.  Adair,  for  appellee. 


BAKER,  J.  This  is  an  appeal  from  a 
judgment  of  confirmation  of  a  special  as- 
sessment made  under  an  ordinance  of  the 
city  of  Chicago  passed  March  7,  1892,  and 
providing  for  the  construction  of  a  cement 
sidewallv  on  Fiftieth  street,  from  Lake  ave- 
nue to  Drexel  boiilcvard.  The  commission- 
el's  appointed  to  assess  the  cost  and  expen- 
ses of  the  improvement  upon  the  property 
benefited  thereby  returned  into  court  an  as- 
sessment roll  in  which  the  property  here  in 
question,  then  owned  by  John  H.  Dunham, 
since  deceased,  was  assessed  in  the  sum  of 
$1,915.50.  Various  objections  in  writing  were 
filed  by  said  Dimham  and  overruled  by  the 
court.  The  question  of  benefits  was  sub- 
mitted to  a  jury,  and  the  juiy  in  their  ver- 
dict reduced  the  assessment  on  the  property 
to  $1,G38.75.  Motions  for  a  new  trial  and  in 
arrest  of  judgment,  as  well  as  motions  to 
dismiss  the  petition  and  to  cancel  the  assess- 
ment, were  made  by  the  objector,  and  over- 
ruled by  the  court,  and  exceptions  taken; 
and  the  court  entered  judgment  of  confirma- 
tion for  the  amount  fixed  by  the  verdict  of 
the  jui-y,  and  the  objector  perfected  an  ap- 
peal to  this  court.  John  H.  Dunham,  the 
objector,  thereafter  died,  and  his  death  was 
suggested,  and  by  leave  of  court  Helen  Eliz- 
abeth Dunham  Hawes  and  Mary  Virginia 
Dunham,  who  are  his  heirs  at  law  and  devi- 
sees under  his  will,  now  prosecute  the  ap- 
peal. 

It  is  claimed  by  appellants  that  the  ordi- 
nance providing  for  the  construction  of  the 
cement  sidewalk,  and  under  which  the  as- 
sessment was  made,  is  unreasonable,  unjust, 
and  oppressive,  and  therefore  void.  The  un- 
contradicted evidence  in  the  case  shows  that 
the  tract  of  land,  the  south  50  feet  of  which 
is  assessed  for  this  improvement,  is  a  20- 
acre  tract,  having  a  frontage  of  1,256  feet 
along  Fiftieth  street,  where  it  is  proposed 
to  coustnict  this  cement  sidewalk;  that  thei'e 
is  not  a  house  or  building  of  any  kind  upon 
it;  and  that  it  is  an  undivided  tract  of  land, 
and  the  only  use  to  which  it  is  put  is  that 
of  a  field  for  raising  hay.  Only  five  months 
before  the  passage  of  this  ordinance  for  the 
construction  of  a  cement  sidewalk  the  devi- 
sor of  the  appellants  in  this  case,  in  compli- 


ance with  a  prior  ordinance  of  the  city,  duly 
passed  for  that  purpose,  constructed  and  put 
down  along  the  line  of  this  street,  in  the 
very  place  where  this  cement  sidewalk  is  to 
be  placed,  a  wooden  sidewalk,  six  feet  in 
width,  made  of  plank  laid  crosswise  on 
stringers  or  joists,  in  strict  confoi-mity  to 
the  regulations  and  requirements  of  the  city; 
and  this  plank  sidewalk,  at  the  time '  this 
ordinance  on  whifh  the  present  proceedings 
are  based  was  passed,  and  at  the  time  this 
case  was  heard  in  the  court  below,  was  in 
good  order  and  condition.  The  uncontra- 
dicted evidence  further  shows  that  the  street 
along  which  it  is  proposed  to  consti-uct  this 
cement  sidewalk  has  never  been  improved 
by  the  city.  It  is  neither  curbed  nor  paved, 
sewered  nor  watered,  surveyed  nor  graded. 
If  it  is  to  be  considered  as  a  street  66  feet 
wide,  then  there  is  a  line  of  telegraph  poles 
planted  right  through  the  center  of  it;  and 
the  north  33  feet  of  it  has  never  been  form- 
ally dedicated  by  the  owner  to  public  use, 
nor  condemned  by  any  municipal  corpora- 
tion; and  if  the  public  have  any  right  to  it 
at  all  it  is  a  right  bj'  prescription  or  by  im- 
plied dedication.  Such  was  and  is  the  con- 
dition of  this  street  in  front  of  appellants' 
property.  And  yet,  as  appears  from  the  i*ec- 
ord  in  the  case,  the  common  council  of  the 
city  of  Chicago,  only  five  months  after  the 
constniction  at  a  great  expense  of  a  new 
plank  sidewalk,  built  in  conformity  with  the 
order  of  the  city  council,  1,256  feet  long, 
pac-sed  a  second  ordinance  ordering  this  new 
plank  sidewalk  torn  up,  and  a  cement  walk, 
at  an  assessed  expense  of  $1,915.50  or  $1,- 
638.75,  put  down  in  its  place.  It  is  admitted 
by  the  city— at  least  not  denied— that  this 
plank  or  wooden  sidewalk,  at  the  time  the 
ordinance  for  the  cement  sidewalk  was  pass- 
ed, and  at  the  time  this  case  was  heard  in 
the  court  below,  was  in  good  order  and  con- 
dition, and  will  answer  equally  well,  for 
the  puipose  of  travel,  as  a  cement  w^alk. 
Nor  can  it  for  a  moment  be  contended  that 
it  is  not  unreasonable,  unjust,  and  oppres- 
sive to  compel  the  owner  of  a  vacant  20- 
acre  lot  first  to  construct  and  pay  for  a 
wooden  sidewalk,  and  then  within  less  than 
six  months,  and  when  it  is  in  substantially 
as  good  condition  as  when  first  built,  and  in 
all  respects  safe,  convenient,  and  sufficient 
for  public  use  and  travel,  take  it  up,  throw 
it  away,  and  put  down  another  in  its  place, 
at  an  expense  of  over  $1,600.  It  seems  to 
us  that  it  cannot  be,  especially  when  we 
take  into  consideration  the  fact  that  the 
street  has  never  been  improved,  cm'bed, 
graded,  paved,  or  sewered.  And  further,  it 
is  clear  from  the  evidence  in  the  case  that  if 
this  judgment  should  be  affirmed,  and  ap- 
pellant compelled  to  take  up  the  wooden 
sidewalk  and  put  down  one  of  cement,  the 
cement  sidewalk  will  be  ruined  by  putting  in 
the  house  drains  every  25  feet  along  the  line 
of  the  street,  or  at  least  seriously  injured; 
and   whenever  the  street   is   improved,    and 


MUST  BE  LAWFUL  AXD  REASONABLE. 


18a 


dwelling's  are  constructed  along  the  line  of 
the  walk,  the  walk  itself  is  quite  likely  to  be 
destroyed. 

/    An  ordinance  must  be  reasonable;    and  if 
/  it  is  unrensonable,  unjust,  and  oppressive,  the 
I  courts   will   hold  it   invalid  and  void.     City 
of  Chica^'o  v.  Runipff,  45  111.  90;   Tuginan  v. 
I  City  of  Chicago,  78  111.  405.     The  question 
/  of  the  reasonableness  or  unreasonableness  of 
a  municipal  ordinance  is  one  for  the  decision 
/   of  the  court,  and  in  determining  that  ques- 
[   tion  the  court  will  have  regard  to  all  the  ex- 
isting    circumstances    or     contempoi'aneous 
i   conditions,  the  objects  sought  to  be  obtained, 
and  the  necessity  or  want  of  necessity  for  its 
adoption.     Toledo,  W.  &  AV.  Ry.  Co.  v.  City 
of  Jacksonville,  67  111.  o7;  City  of  Lake  View 
V.  Tate,   130  111.  247,  22  N.   E.  791;    1  Dill. 
I  Mun.  Corp.  §  327.     And  even  w'here  the  pow- 
f   er  to  legislate  on  a  given  subject  is  confeiTed 
on  a  municipal  corporation,  yet,   if  the  de- 
I    tails  of  such  legislation  are  not  prescribed 
(    by  the  legislature,  there  the  ordinance  passed 

(in  pursuance  of  such  power  must  be  a  rea- 
sonable exercise  thereof,  or  it  will  be  pro- 
nounced invalid.  Id.  §  328;  City  of  St.  Paul 
v.  Colter,  12  Minn.  41  (Gil.  16);  Dunham  v. 
Trustees,  5  Cow.  462;  Breninger  v.  Treas- 
urer of  Town  of  Belvidere,  44  N.  J.  Law,  350. 
In  Cooley  on  Taxation  (page  428)  it  is  said: 
'A  clear  case  of  abuse  of  legislative  authori- 
ty in  imposing  the  burden  of  a  public  im- 
provement on  persons  or  property  not  spe- 
cially benefited  would  undoubtedly  be  treat- 
ed as  an  excess  of  power,  and  void."  In  Al- 
len V.  Drew,  44  Vt.  174,  the  court,  by  Red- 
field,  J.,  says:  "We  have  no  doubt  that  a 
local  assessment  may  so  transcend  the  limits 
of  equality  and  reason  that  its  exaction 
would  cease  to  be  a  tax  or  contribution  to  a 
common  burden,  and  become  extortion  and 
confiscation.  In  that  case  it  would  be  the 
duty  of  the  court  to  protect  the  citizen  from 
robbeiy  under  color  of  a  better  name."  In 
Wistar  v.  Philadelphia,  SO  Pa.  St.  505,  Chief 
Justice  Agnew  says:  "But  if  we  say  the  city 
may  change  its  pavements  at  pleasure,  and 
as  often  as  it  please,  at  the  expense  of  the 
ground  owner,  we  take  a  new  step,  and  there 
must  be  explicit  legislation  to  authorize  such 
taxation.  If,  while  the  pavement  is  good,  and 
stands  in  no  need  of  repair,  the  city  may  tear 
It  up,  relay,  and  charge  the  owner  again 
with  one  excessively  costly,  it  would  be  ex- 


action, not  taxation.  We  are  not  at  liberty 
to  impute  such  a  design  to  the  legislature, 
unless  it  has  plainly  expressed  its  meaning 
to  do  this  unjust  thing."  And  in  Wistar  v. 
Philadelphia,  111  Pa.  St.  604,  4  Atl.  511,  it 
is  held  that  where  a  property  owner  has  well 
and  properly  set  curbstones  in  front  of  his 
property  at  his  own  expense,  on  the  proper 
line,  in  accordance  with  the  style  in  common 
use,  and  they  are  in  good  order  and  repair, 
the  expense  of  replacing  them  with  others 
cannot  be  provided  for  by  an  assessment  upon 
his  property.  In  Corrigan  v.  Gage,  68  Mo. 
541,  it  was  held  that  the  ordinance  for  the 
paving  of  the  sidewalk  there  in  question  was 
unreasonable  and  oppressive,  and  subject  to 
judicial  inquiiy,  because  such  sidewalk  was 
in  an  uninhabited  portion  of  the  city,  and 
disconnected  with  any  other  street  or  side- 
walk; and  the  judgment  of  the  court  below 
was  reversed.  In  City  of  Bloomington  v. 
Chicago  &  A.  R.  Co.,  134  III.  451,  26  N.  E, 
366,  this  court  held  that,  where  the  ordi- 
nance is  grossly  unreasonable,  unjust,  and 
oppressive,  that  may  be  shown  in  defense  of 
the  application  for  confirmation.  And  in 
City  of  Bloomington  v.  Latham,  142  111.  462, 
32  N.  E.  506,  we  held  that  an  ordinance  di- 
recting that  the  cost  of  the  land  taken  or 
damaged,  or  both,  should  be  assessed  upon 
and  collected  from  the  lands  abutting  upon 
the  proposed  alley  or  street  in  proportion  to 
the  frontage  thereof,  was  unreasonable  and 
void.  And  in  Davis  v.  City  of  Litchfield,  145 
111.  313,  33  N.  E.  8S8,  and  Palmer  v.  City  of 
Danville,  154  111.  156,  38  N.  E.  lOfw,  ordinan- 
ces levying  special  taxes  for  local  improve- 
ments were  held  to  be  um-easonable,  arbi- 
trary abuses  of  power,  and  void.  The  rule  ' 
is  that  it  requires  a  clear  and  strong  case  to' 
justify  a  court  in  annulling  the  action  of  a 
municipal  corporation  acting  within  the  ap-  I 
parent  scope  of  its  authority.  But,  in  our  [ 
opinion,  such  a  case  appears  in  this  record. 
We  think  that  the  ordinance  in  question,  in  ' 
so  far  as  and  to  the  extent  that  it  affects 
the  property  of  appellants,  is  unreasonable,  / 
unjust,  and  oppressive,  and  therefore  void.  ■ 
The  judgment  of  confirmation  as  to  the  prop- 
erty of  appellants  is  reversed,  and,  the  ordi- 
nance being  void  as  to  such  property,  the 
cause  will  not  be  remanded.     Reversed. 

CRAIG,  J.,  dissents. 


184 


MUNICIPAL   ORDINANCES. 


CITY  OF  SAGINAW  v.  McKNIGHT,  Circuit 
Judge. 

(63  N.   W.  9S5.) 

Supreme  Court  of   Michigan.    July  2,  1895. 

Application  for  writ  of  manilamus  by  the 
city  of  Sasinaw  against  Robert  B.  McKuight. 
circuit  judge.     Writ  denied. 

Wm.  G.  Gage,  for  relator.  James  H.  Da- 
vitt,  for  respondent 

HOOKER,  J.  The  charter  of  the  city  of 
Saginaw  provides  that  "the  common  council 
may  require  transient  dealers  to  take  out  li- 
cense before  engaging  in  business,  and  regu- 
late the  terms  and  conditions  of  issuing  the 
same."  Local  Acts  1SS9,  p.  900,  §  9.  Under 
the  authority  conferred  by  this  section  the 
council  passed  an  ordinance  wliicb  iirovides 
■"that  eveiy  pereon,  not  a  resident,  who  shall 
bring  into  the  city  any  goods,  wares  or  mer- 
chandise, with  a  view  to  dispose  of  the  same 
by  auction  or  otherwise,  without  any  bona 
fide  intention  of  remaining  permanently  in 
the  business  of  selling  or  disposing  of  such 
goods,  wares  or  merchandise  within  the  city, 
shall  be  deemed  and  ti'eated  as  a  transient 
trader  or  dealer,  and  before  he  shall  sell  or 
expose  for  sale  any  of  such  goods,  wares  or 
merchandise  within  the  city,  either  by  auction 
or  otherwise,  he  shall  pay  to  the  city  treas- 
urer, for  the  use  of  said  city  the  sum  of  ten 
dollars  per  day  for  every  day  or  part  of  a 
day  such  goods,  wares  or  merchandise  shall 
be  exposed  for  sale."  The  ordinance  provides 
for  the  issue  of  a  license  upon  such  payment, 
and  a  penalty  for  noncompliance.  It  also  pro- 
vides that  the  words  "goods,  wares  and  mer- 
chandise" shall  not  be  constraed  to  include 
wood  or  fuel,  or  the  products  of  the  farm  or 
dairy,  when  exposed  or  offered  for  sale  by 
the  producers  thereof.  One  McDevitt  was 
convicted  before  a  justice  of  violating  this 
ordinance.  Upon  appeal  to  the  cu-cuit  court, 
the  proceedings  were  quashed  by  the  respond- 
ent, upon  motion,  upon  the  ground  that  the 
ordinance  was  invalid,  and  we  are  asked  to 
issue  a  mandamus  requiring  him  to  vacate  his 
order  in  the  promises,  and  proceed  with  the 
trial  of  the  cause. 

It  is  asserted  that  the  ordinance  is  void  be- 
cause: (1)  It  discriminates  between  resi- 
dents of  the  city  of  Saginaw  and  other  per- 
sons. (2)  It  discriminates  between  nonresi- 
dents, inasmuch  as  it  requires  a  license  only 
in  cases  where  the  goods  sold  are  brought  in- 
to the  city.  (3)  The  fee  charged  for  the  li- 
cense  is  excessive  and  unreasonable.      The 


business  of  a  transient  dealer  if  subjected  to   | 
the  payment  of  a  fee  must  be  with  a  view  to  ; 
taxation,  or  to  cover  the  expense  of  regula-  / 
tion  under  the  police  power.     In  this  case  it 
cannot  be  said  that  the  fee  can  be  sustained  \ 
as  a  tax,  because  the  charter  does  not  indicate 
an  intention  upon  the  part  of  the  legislature  / 
to  authorize  the  municipality  to  tax  the  busi-  / 
ness,  but  only  to  license  to  the  end  that  it/ 
may  regulate  it.     The  language  of  the  char-  / 
ter  indicates  a  design  to  promote  the  public  ' 
good  rather  than  to  obtain  revenue.     As  said  I 
by  ]\Ir.  Justice  Cooley,  in  People  v.  Russell,-' 
49  Mich.  619,  14  N.  W.  508:    "That  the  regu- 
lation of  hawkers  and  peddlers  is  important, 
if  not  absolutely  essential,  may  be  taken  as 
established  by  the  concurring  practice  of  civ- 
ilized  states.     They   are  a   class   of  persons 
who  travel  from  pla.ce  to  place  among  stran- 
gers, and  the  business  may  easily  be  made  a 
pretense  or  a  convenience  to  those  whose  real 
pm'pose  is  theft  or  fraud.     The  requirement 
of  a  license  gives  opportunity  for  inquiry  into 
antecedents  and  chai-acter,  and  the  payment 
of  a  fee  affords  some  evidence  that  the  busi- 
ness is  not  a  mere  pretense."     This  may  be 
measurably  ti-ue  of  transient  dealers;    and  it 
is  to  protect  the  community  from  imposition 
and  fraud,  rather  than  to  obtain  revenue,  that, 
in  our  opinion,  this  power  was  conferred.     If 
this  is  so,  there  is  no  reason  for  an  ordinance 
that  applies  only  to  nonresidents,  as  a  class, 
and   which  exempts  inhabitants  of  the  city. 
We  do  not  discuss  the  extent  to  which  the  i 
city   may  go  in  restricting  and  limiting  the  ' 
number  of  sa.id  dealers,  and  whether  tests  re-  \ 
lating  to  character,  etc.,  may  be  applied  (see    1 
Kitson  V.  Ann  Arbor,  26  Mich.  327;    Sherlock  j 
V.  Stuart,  90  INIich.  193,  55  N.  W.  845),  as  this  I 
ordinance  does  not  attempt  to  regulate  this  \ 
business  upon  these  lines.    It  permits  any  one  ' 
to  engage  in  the  business  of  transient  dealer.  ' 
If  by  this  term  is  meant  a  dealer  who  goes 
about  from  place  to  place,  there  is  no  appar- 
ent  reason   for  thinking  that   such  business  ■ 
only  needs  regulation  when  conducted  by  uon-  | 
residents.     It  seems  to  us  that  this  ordinance  . 
is  aimed  at  nonresidents,  and  there  is  room 
for  the  suspicion  that  it  was  designed  for  the 
benefit  of  residents,  and  therefore  open  to  the 
criticism  that  it  is  in  restraint  of  trade.    More- 
over, it  borders  very  closely  upon  the  line  of 
imreasonable  license  fees.    We  think  the  case 
is  within  the  doctrine  of  Brooks  v.  Mangan, 
86  Mich.  570,  49  N.  W.  633,  if  not  of  Chad- 
dock  V.    Day,   75  Mich.   527,  42   N.  W.   977, 
and  that  the  ordinance  is  void.    The  writ  will 
therefore  be  denied,  with  costs.     The  other 
justices  concurred. 


MUST  BE  IMPARTIAL  AND  GEXERAL. 


185 


CLEMENTS   v.  TOWN  OF  CASPER. 

(35  Pac.  472.) 

Supreme  Court  of  Wyoming.     Jan.  IG,  1S94. 

Error  to  district  court,  Natrona  county; 
John  W.  Blake,  Judjre. 

C.  E.  Clemonts  was  convicted  of  the  vio- 
lation of  an  ordinance  of  the  town  of  Cas- 
per requiriner  certain  sales'inen,  ajients,  and 
peddlers  to  proeiu'e  a  license  to  do  business 
in  such  town,  and  he  brings  error.  Re- 
versed. 

C.  C.  Wright,  for  plaintiff  in  error.  Alex. 
T.  Butler,  fur  defendant  in  error. 


GROESBECK,  C.  J.  The  plaintiff  in  er- 
ror was  arrested  and  tried  before  a  police 
justice  of  the  town  of  Casper  for  the  viola- 
tion of  an  ordinance  of  said  town  concern- 
ing peddlers,  lie  was  convicted,  and  ap- 
pealed to  the  district  court  of  the  county, 
wherein  he  was  tried  by  the  court,  and  con- 
victed. He  brings  error  here,  attacking  the 
town  ordinance  as  unconstitutional  and  void, 
as  in  contravention  of  the  provisions  of  the 
constitution  of  the  United  States  conferring 
power  upon  congress  to  regulate  commerce 
among  the  several  states,  as  in  violation  of 
a  further  provision  of  the  federal  constitu- 
tion that  the  citizens  of  each  state  shall  be 
entitled  to  aU  privileges  and  immunities  of 
citizens  of  the  several  states,  snd  as  demand- 
ing an  unreasonable  license  fee.  The  ordi- 
nance of  the  town  was  introduced  in  evi- 
dence in  the  court  below,  and  the  material 
portions  of  it  read  as  follows:  "An  Ordi- 
nance Concerning  Peddlers.  Be  it  ordained 
by  the  town  council  of  the  town  of  Casper: 
Section  1.  It  shall  not  be  lawful  for  any  per- 
son or  persons  to  hawk  or  peddle  any  goods, 
wares,  merchandise  or  any  other  valuable 
article  or  things  within  the  corporate  limits 
of  the  town  of  Casper  without  first  having 
obtained  a  license  so  to  do  as  hereinafter 
provided.  Sec.  L'.  No  person,  persons,  com- 
pany or  corporation,  being  nonresident  shall 
in  person  or  by  employee,  travelling  or  local 
agent,  drummer  or  salesman,  sell  by  sam- 
ples or  otherwise  in  this  town  any  goods, 
wares  or  merchandise,  either  foreign  or  do- 
mestic, without  first  obtaining  a  license  as 
hereinafter  provided.  Sec.  3.  Every  person 
selling  goods,  wares  or  merchandise  by  sam- 
ples or  otherwise  to  be  delivered  in  the  fu- 
ture through  a  storekeeper  or  merchant  of 
this  town  is  a  peddler.  Sec.  4.  This  ordi- 
nance shall  not  apply  to  travelling  agents 
and  drummei's  who  sell  exclusively  by  sam- 
ple or  otherwi.se  to  regular  merchants  doing 
business  in  the  town,  nor  to  persons  selling 
fruits,  vegetables  and  farm  products.  Sec. 
5.  Every  person  wishing  to  obtain  a  license 
as  a  peddler  shall  apply  to  the  town  clerk 
or  town  marshal  stating  in  what  manner, 
in  what  articles  and  for  what  time  he  wishes 
thus  to  trade.  And  upon  his  paying  license 
fee  of  $Jo.uO  in  advance  for  each  24  hours 


he  shall  be  permitted  to  trade  as  a  peddler. 
No  license  shall  be  Issued  for  less  than  24 
hours."  The  other  sections  of  the  ordinance 
relate  to  the  penalties  prescribed  for  its 
violation,  the  issuance  of  the  license,  and 
the  time  when  the  ordinance  shall  take  ef- 
fect, and  need  not  be  considered.  An  at- 
tempt is  clearly  made  by  the  ordinance  to 
distinguish  between  commercial  travelers 
selling  exclusively  by  sample  or  otherwise 
to  merchants  doing  business  in  the  town, 
and  to  agents  s(^lliug  generally  to  the  in- 
habitants of  the  town  by  sample,  without 
regard  to  their  vocation.  The  evidence  of- 
fered discloses  that  the  plaintiff  in  error  was 
a  traveling  agent  of  Wilder  Bros.,  located 
at  Lawrence,  Kan.,  and  that  he  sold  by 
samples  shirts,  muslins,  woolens,  silks,  ho- 
siery, and  other  articles,  to  be  forwarded  by 
his  commercial  house  to  the  parties  pur- 
chasing. The  goods  sold  at  Casper  were 
forwarded  by  express  to  the  purchasers,  and 
were  not  delivered  "in  the  future  through  a 
storekeeper  or  merchant"  of  the  town.  The 
case  falls  within  the  principles  announced 
by  the  supreme  court  of  the  United  States 
in  the  case  of  Bobbins  v.  Taxing  Dist.,  120 
U.  S.  489,  7  Sup.  Ct.  592,  and  Leloup  v. 
Port  of  Mobile,  127  U.  S.  640,  8  Sup.  Ct. 
13S0;  but  the  facts  of  the  case  as  presented 
by  the  evidence  are  more  akin  to  those  in 
the  case  of  Asher  v.  Texas,  128  U.  S.  129, 
9  Sup.  Ct.  1,  where  the  plaintiff  in  error  was 
a  resident  of  the  state  of  Louisiana,  and 
was  engaged  in  the  business  of  soliciting 
trade  by  the  use  of  samples  for  the  house 
for  which  he  worked  as  drummer,  which 
was  located  in  the  city  of  New  Orleans,  in 
said  state.  His  territory  of  operations  was 
in  the  city  of  Houston,  in  Harris  county, 
Tex.,  and  his  business  was  soliciting  orders 
or  ti-ade  for  his  employers,  who  were  manu- 
facturers of  rubber  stamps  and  stencils. 
^^'hile  so  engaged  he  was  aiTested,  and  lined 
for  the  alleged  offense  of  pm'suing  the  oc- 
cupation of  drummer  without  a  license,  con- 
trary to  a  provision  of  the  Penal  Code  of 
the  state  of  Texas.  Upon  habeas  corpus  pro- 
ceedings before  the  court  of  appetils  of  that 
state  the  conviction  was  sustained,  and  the 
petitioner  remanded  to  the  custody  of  the 
sheriff,  and  to  review  such  judgment  of  the 
state  court  writ  of  error  was  brought  in  the 
federal  supreme  com't.  It  was  held  b.v  that 
tribunal  that  there  was  no  distinction  be- 
tween the  case  and  that  of  Bobbins  v.  Tax- 
ing Dist,  supra,  and  the  judgment  of  the 
court  of  appeals  of  Texas  was  reversed,  and 
the  case  remandetl.  with  instnictions  to  dis- 
charge the  prisoner. 

The  distinction  made  by  the  ordinance  of 
the  town  of  Casper,  under  consideration,  be- 
tween agents  and  drummers  selling  exclu- 
sively by  sample  or  otherwise  to  regular 
merchants  of  the  town  and  those  selling  to 
the  public  generally  cannot  alter  the  situa- 
tion. The  constitrtim  of  the  United  St;Ues 
having  given  to  congress  the  power  to  regu- 


186 


MUNICIPAL  ORDINANCES. 


A 


late  commerce,  not  only  with  foreign  na- 
tions, but  among  the  several  states,  that 
power  is  necessarily  exclusive  whenever  the 
subjects  of  it  ai-e  national  in  their  character, 
or  admit  only  of  one  uniform  system  or  plan 
of  regulation;  and  when  congress  has  fail- 
ed to  make  express  regulations  of  the  com- 
merce among  the  states  this  indicates  its  will 
that  the  subject  shall  be  left  free  from  any 
restrictions  or  impositions,  and  any  regula- 
tion of  the  subject  by  the  state  is  repugnant 
to  such  freedom,  except  in  matters  of  local 
concern  only,  where  the  state,  by  virtue  of 
Its  police  power,  and  its  jurisdiction  of  per- 
sons and  property  within  its  limits,  provides 
for  the  socm'ity  of  the  lives,  limbs,  health, 
a.-  1  comfort  of  persons  and  the  protection  of 
property;  or  wlien  the  state  does  those 
things  which  may  otherwise  incidentally  af- 
fect commerce,  such  as  the  establishment  and 
regulation  of  highways,  canals,  railroads, 
wharves,  ferries,  and  other  commercial  facil- 
ities; or  by  tlie  passage  of  inspection  laws 
seelis  to  seciu-e  the  due  quality  and  measure 
of  products  and  commodities;  or  by  the  pas- 
sage of  laws  regulates  or  restricts  the  sale  of 
articles  deemed  injurious  to  the  health  or 
morals  of  the  community;  or  Imposes  taxes 
upon  persons  residing  within  the  state  or  be- 
longing to  its  population,  and  upon  avoca- 
tions and  employments  pursued  therein,  not 
directly  connected  with  foreign  or  interstate 
commerce,  or  with  some  business  or  employ- 
ment exercised  under  authority  of  federal, 
constitutional,  or  statutory  law;  or  imposes 
taxes  upon  all  property  within  the  state, 
mingled  with  and  forming  the  gi'eat  mass  of 
property  therein.  But  the  state,  in  making 
such  necessary  police  and  revenue  regula- 
tions which  are  permissible,  cannot  impose 
taxes  upon  persons  passing  through  the  state, 
or  coming  into  it  merely  -for  a  temporary  pur- 
pose, especially  if  connected  with  interstate 
or  foreign  commerce;  nor  can  it  impose  such 
taxes  upon  property  imported  into  the  state 
from  abroad,  or  from  another  state,  and  not 
yet  become  part  of  the  common  mass  of  prop- 
erty therein.  No  discrimination  can  be  made 
by  any  such  regulations  adversely  to  the  per- 
sons or  property  of  other  states;  and  no  reg- 
ulation can  be  made  directly  affecting  inter- 
state commerce,  as  such  taxation  or  regula- 
tion would  be  an  unauthorized  interference 
with  the  power  given  to  congress.  One  of 
the  reasons  for  the  adoption  of  the  federal 
constitution,  "in  order  to  fonn  a  more  per- 
fect Union,"  was  to  prevent  a  numi)er  of  sys- 
tems of  the  regulation  of  commerce  among 
the  states,  only  limited  to  their  number,  and 
which  was  deemed  a  great  evil  under  the 
articles  of  confederation.  "In  the  matter  of 
Interstate  commerce,  the  United  States  are 
but  one  country,  and  are  and  must  be  sub- 
ject to  one  sj-stem  of  regidations,  and  not 
to  a  multitude  of  systems.  The  doctrine  of 
tlie  freedom  of  that  commerce,  except  as 
regulated  by  congress,  is  so  firmly  establish- 
\V   ed  that  it  is  unnecessary  to  enlarge  further 


upon  the  subject    •    •   •    It  is  strongly  urged, 
as  if  it  were  a  material  point  in  the  case,  that 
no  discrimination  is  made  between  domestic 
and  foreign  di'ummers,— those  of  Tennessee 
and  those  of  other  states, — that  all  are  taxed 
alike.     But  that  does  not  meet  the  difficulty. 
Interstate  commerce  cannot  be  taxed  at  all, 
even  though  the  same  amount  of  tax  should 
be  laid  on  domestic  commerce,  or  that  which 
is  carried  on  solely  within  the  state."     Rol> 
bins   v.    Taxing     Dist.,    supra;    City    of    Ft. 
Scott  V.  Pelton,  39  Kan.  7G4,  18  Pac.  934.    It 
makes  no  difference  whether  the  articles  im- 
ported into  a  state  to  be  sold  are  farm  prod- 
ucts  or   manufactured   articles  or  any  kind 
of  merchandise.     The  power  of  the  state  and  1 
its  municipalities  is  exhausted  as  to  her  own 
resident  dealers  and  agents,  and  to  the  prop-    ' 
erty  within  its  jurisdiction,  unless  the  morals    i 
or  health  of  the  people  are  in  danger  from    I 
the  foreign  commerce  introduced  within  her  | 
borders,  or  imless  the  property  has  been  min- 
gled and  merged  into  the  great  mass  of  the 
property  within  the  state.     If  the  state  can-   \ 
not,  through  its  statute,  interfere  with  inter-    j 
state  commerce,  sm^ely  it  cannot  delegate  this     I 
power  to  one  of  her  municipalities;    and   if 
a  statute  would  be  void  imposing  such  re-    i 
strictions  as  the  ordinance  of  the  municipal-    I 
ity  imposes,  the  ordinance  is  invalid  as  well,    / 
as  the  matter  is  wholly  within  the  control 
of  congress,  and,  where  not  regulated  by  that    \ 
department  of  government,  no  inferior  reg- 
ulation can  control,   whether  imposed  by  a    / 
state,  or  by  any  of  its  municipal  subdivisions  / 
for  governmental  purposes.    The  words  "ped- 
dler" and  "hawker"  have  a  settled  meaning, 
independently  of  statutory  definition.      The 
former  is  an  itinerant  trader,  a  person  who 
sells  small  wares,  which  he  carries  with  him 
in  traveling  about  from  place  to  place,  while 
the  latter  is  also  a  trader  who  goes  from 
place  to  place,  or  along  the  streets  of  a  town, 
selUng  the  goods  which  he  carries  with  him, 
although  it  is  generally  understood  from  the 
word  that  a  hawker  also  seeks  for  purchas- 
ers, either  by  outcry,  as  the  derivation  of  the 
word  would  seem  to  indicate,  or  by  attract- 
ing notice  and  attention  to  them  as  goods 
for  sale  by  actual  exposure  or  exhibition  of 
them  by  placards  or  labels  or  by  some  con- 
ventional signal  or  noise.     Of  such  occupa- 
tions the  state  has  control,  and  under  the  au- 
thority derived  from  the  general  incorpora- 
tion act  of  the  state,  under  which  the  town 
of  Casper  was  incorporated,  "to  license,  tax, 
regulate,    suppress    and    prohibit    hucksters, 
peddlers,"  etc.,  (llev.  St.  §  468,  subd.  9,)  the 
town  has  a  right  to  enact  ordinances  govern- 
ing such  occupations,  and  regulating,  licens- 
ing, taxing,  or  prohibiting  them.     But  the  or- 
dinance goes  further  than  this,  and  attempts 
to  do  what  has  been  unsuccessfully  attempt- 
ed time  and  again,  for  the  benefit  and  ad- 
vant;ige  of  domestic  dealers,  to  exclude  the 
agents  of  dealers  from  other  states;    and  this 
cannot  be  done,  as  the  property  offered  for 
sale  is  not  under  the  jm-isdiction  of.  or  sub- 


MUST  BE  IMl'ARTIAL  AND  GENERAL. 


187 


ject  to,  regulation  by  the  state  or  its  munici- 
palities, and  is  not  carried  about  from  place 
to  place,  and  exhibited  for  sale.  The  defini- 
tion of  a  peddler  in  section  3  of  the  ordi- 
nance is  not  the  generally  accepted  one,  and 
under  the  evidence  adduced  in  the  case  the 
plaintiff  in  error  was  not  one,  as  the  articles 
he  sold  were  delivered  in  the  future,  through 
an  express  agent.  It  may  be  that  this  defini- 
tion is  not  an  exclusive  one,  but  may  be  con- 
sidered as  an  enlargement  of  the  usual  terra; 
but  the  evidence  plainly  shows  that  the  plain- 
tiff was  not  a  peddler  in  the  usual  under- 
standing of  the  term,  nor  in  the  light  of  the 
definition  of  the  ordinance,  as  he  neither  car- 
ried about  his  goods  from  place  to  place  with- 
in the  town,  nor  sold  and  delivered  them  si- 
multaneously, nor  made  future  delivery  of 
them  through  a  storekeeper  or  merchant  of 
the  town.  Even  where  a  commercial  trav- 
eler or  agent,  usually  denominated  a  "drum- 
mer," simply  exhibits  samples  of  goods  kept 
for  sale  by  his  principal,  and  taios  orders 
from  purchasers  for  the  goods,  which  are 
afterwards  to  be  delivered  by  the  principal 
to  the  purchasers,  and  payment  for  the  goods 
is  to  be  made  to  the  principal  by  the  pm*- 
chasers  on  such  delivery,  such  agent  is  nei- 
ther a  peddler  nor  merchant;  nor  even  will 
a  single  sale  or  delivery  of  goods  by  such 
agent,  or  by  any  other  person,  out  of  the 
samples  exhibited,  or  out  of  any  other  lot  of 


goods,  constitute  such  person  or  other  person 
a  peddler  or  merchant.     City  of  Kansas  v. 
GolHns,  34  Kan.  434,  8  Pac.  8G5,  and  cases 
cited;    Com.     v.     Farnum,     114     Mass.     267. 
While  the  regulation  of  commercial  travelers 
by  license  or  otherwise  may  be  deemed  a 
great  necessity  by  local  dealers  and  others, 
particularly  where  orders  are  taken  from  the 
people    generally,    instead    of   from    regular 
merchants   and   dealers,    this   authority    can 
only    be    exercised    by    congi-ess,    and    state 
laws    and     municipal    ordinances   are    alike  / 
futile  in  any  attempted  control  of  the  com-   . 
merce  between  the  states,  except  as  herein  / 
indicated.     The  ordinance  is  void,   as   it  Is 
mthin  the  ban  of  the  federal  constitution  as   1 
interpreted  by  the  supreme  court  of  the  Unit-    I 
ed  States,  both  as  an  unlawful  and  uncon-  ' 
stitutional  interference  with  interstate  com-    I 
merce,   and  as  an  attempted  discrimination   / 
adverse  to  nonresidents  of  the  state.     It  ap-  / 
pears  to  us  that  the  license  fee  of  ?25  for 
each  24  hom*s — which  undoubtedly  means  a 
day — is   excessive  and   vmreasonable,   but  It 
is  unnecessary  to  consider  that  question,  as 
the  ordinance  is  void  for  the  reasons  a.ssign- 
ed.     The  judgment  of  the  distiict  coiu't  of 
Natrona  county  is  reversed,  and  the  cause  re- 
manded,  with   the  direction  to  dismiss   the 
complaint. 

CONAWAY  and  CLARK,  JJ^  concur. 


188 


MUNICIPAL   ORDINANCES. 


WAUKESHA  HYGEIA  MINERAL  SPRING 
CO.  V.  PRESIDENT,  ETC.,  OF  VIL- 
LAGE OF  WAUKESHA  et  al. 

(53  N.  W.  675,  83  Wis.  475.) 

Supreme  Court  of  Wisconsin.     Nov.   15,  1892. 

Appeal  from  circuit  court,  Waukesha  coun- 
ty;   A.  Scott  Sloan,  Judge. 

Action  by  tlie  president  and  trustees  of 
the  village  of  Waukesha  and  others  against 
the  Waukesha  Hygeia  Mineral  Spring  Com- 
pany to  enjoin  the  laying  of  pipe  line  through 
the  streets  of  the  village,  and  action  by  the 
Hygeia  Company  against  the  president  and 
tiiistees  of  Waukesha  and  others  to  restrain 
them  from  interfering  with  their  work.  Both 
actions  were  consolidated,  and  injunction  re- 
straining the  laying  of  pipes  granted,  and  in- 
junction refused  to  prevent  interference  by 
village.  The  Hygeia  Company  appeals.  Af- 
firmed. 

F.  M.  Hoyt  (Keep  &  Lowden,  of  counsel), 
for  appellant.  Ryan  &  Merton  and  T.  W. 
Haight,  for  respondents. 

LYON,  C.  J.  I.  It  is  maintained  by  the 
learned  counsel  for  plaintiff  (the  Hygeia  Min- 
eral Spring  Company)  that  the  village  of  Wau- 
kesha cannot  maintain  an  action  in  the  name 
of  its  president  and  trustees  to  enjoin  that 
company  from  excavating  trenches  in  the  vil- 
lage streets,  and  laying  its  pipe  therein,  even 
though  the  company  has  no  legal  authority 
to  do  so.  Without  entering  upon  an  extended 
discussion  of  this  proposition,  it  is  sufficient  to 
say  we  are  of  the  opinion  that  such  right  of 
action  in  the  municipahty  is  established  by  the 
judgment  of  this  court  in  Town  of  James- 
town V.  Chicago,  B.  &  N.  Ry.  Co.,  69  Wis.  648, 
34  N.  W.  728.  The  reason  is  that  such  un- 
lawful interference  with  the  streets  puts  them 
out  of  repair,  and  almost  necessarily  increases, 
for  the  time  being,  the  liability  of  injuries  to 
persons  and  property  of  travelers  thereon  be- 
cause of  such  defective  condition.  The  village, 
being  responsible  for  injuries  caused  by  de- 
fects in  its  streets,  and  being  charged  by  law 
with  the  duty  of  keeping  them  in  repair,  has 
such  an  interest  in  the  streets  that  it  may 
maintain  actions  to  prevent  any  unlawful  in- 
jury to  them.  The  reasons  why  the  case  of 
City  of  Milwaukee  v.  Milwaukee  &  B.  R.  Co., 
7  "\Tis.  85,  (on  which  counsel  for  plaintiff  rely 
as  denying  a  right  of  action  by  the  village,) 
was  not  applicable  to  that  case,  and  is  not  to 
this,  are  stated  by  Chief  Justice  Cole  in  his 
ojiinion  in  the  Jamestown  Case.  We  hold 
that  the  village  of  Waukesha  may  maintain 
such  action. 

II.  For  the  purposes  of  this  appeal  it  will  be 
assumed  that  the  villnge  board  of  Waukesha 
had  legal  authority  to  grant  to  the  Hygeia 
Company  (the  plaintiff)  the  right,  on  the  con- 
ditions specified  in  the  ordinance  of  July  14, 
1891,  to  excavate  trenches  in  the  streets  of 
the  village,  and  to  lay  pipe  therein  for  the 
(  purposes  specified  in  the  ordinance. 


/ 


7 


III.  If  the  ordinance  went  into  effect  and  re-^ 
mained  in  force,— that  is,  if  there  was  no  ef- 
fectual reconsideration  by  the  board  of  the 
vote  by  which  it  was  passed.— it  will  be  as- 
sumed that  it  still  remains  in  force,  and  that, 
since  its  acceptance  by  the  Hygeia  Company, 
and  the  expenditure  by  the  company  of  consid- 
erable sums  of  money  on  the  faith  of  it,  the 
same  is  irrepealable  without  the  consent  of, 
the  company. 

lY.  Was  there  an  eifectual  reconsideration 
by  the  village  board  of  the  vote  of  July  14, 
1891,  by  which  the  ordinance  was  passed? 
If  the  ordinance  had  not  become  absolutely 
binding  upon  the  village  before  the  motion  to 
reconsider  the  vote  of  July  14th,  by  which  it 
was  passed,  was  adopted,  there  can  be  no 
doubt,  we  think,  of  the  right  of  the  village 
board  to  reconsider  such  vote,  subject  only  to 
such  restrictions  as  are  imposed  upon  the 
board  by  the  charter  and  by-laws  of  the  vil-, 
lage.  Such  right,  in  some  form,  is  inherent  in 
all  deliberative  assemblies  or  bodies.  If  a 
motion  to  reconsider,  properly  and  timely 
made,  prevails,  the  effect  is  to  abrogate  the 
vote  reconsidered,  and  the  matter  stands  be- 
fore th^  assembly  or  body  in  tlie  same  condi- 
tion as  though  the  reconsidered  vote  had  not 
been  passed.  Cush.  Pari.  Law.  §§  12«>4-1266. 
inclusive.  The  charter  of  the  village  of  AVau- 
kesha  is  silent  on  the  subject  of  reconsidera- 
tion, but  it  authorizes  the  village  board  to  es- 
tablish by  ordinance,  resolution,  or  by-law 
rules  to  govern  its  proceedings.  This  gives  the 
board  power  to  prescribe  the  procedure  on  the 
reconsideration  of  votes.  A  copy  of  the  vil- 
lage ordinances  and  by-laws,  purporting  to 
be  published  by  aiithority  of  the  board,  was 
used  on  the  argument.  Its  authenticity  was 
not  questioned.  It  contains  a  by-law  on  the 
subject  of  reconsideration.  Although  it  is  not 
found  in  the  record  before  us,  yet,  inasmuch 
as  it  restricts,  to  some  extent,  the  common-law 
or  inherent  right  of  reconsideration,  it  will  be 
most  favorable  to  plaintiff  to  regard  it  as 
properly  before  the  court.  We  therefore  con- 
strue the  averment  in  the  pleadings  that  the 
vote  by  which  the  ordinance  was  passed  was 
duly  reconsidered  as  an  averment  that  it  was 
reconsidered  in  the  manner  autliorized  by  the 
by-law.  It  reads  as  follows:  "It  shall  be  in 
order  for  any  member  voting  in  the  majority 
to  move  for  a  reconsideration  of  the  vote  on 
any  question  at  the  same  or  next  succeeding 
meeting."  We  are  of  the  opinion  that  the 
vote  of  July  14,  1891,  was  effectually  recon- 
sidered for  either  of  two  reasons:  First,  be- 
cause the  ordinance  had  not  taken  effect  when 
the  vote  on  its  passage  was  reconsidered;  and, 
second,  if  it  had  then  taken  effect,  the  vote 
on  its  adoption  was  reconsidered  at  the  next 
succeeding  meeting  of  the  board,  on  motion 
duly  made,  and  before  the  Hygeia  Company 
had  accepted  the  ordinance,  or  made  any  ex- 
penditure on  the  faith  of  it.  Section  21  of  the 
village  charter  (Priv.  &  Loc.  Laws.  18,19.  c.  30) 
provides  that  "any  ordinance,  regulation,  rule, 
or  by-law  enforcing  any  penalty  or  forfeiture 


REPEAL  AND  ENFORCEMENT. 


189 


for  the  violation  of  its  provisions,  shall  be  pub- 
lished one  week  in  some  newspaper  printed  in 
said  village  before  the  same  shall  be  in  force." 
We  tind  no  provision  in  the  charter  requir- 
ing the  publication  of  ordinances  which  do  not 
imix)se  such  penalties  or  forfeitures.  The  or- 
dinance of  July  14,  1891,  seems  to  belong  to 
the  latter  class,  and  not  to  the  class  specified 
in  section  21.  Probably  it  could  have  been 
framed  so  as  to  be  operative  without  publica- 
tion. But  it  was  doubtless  competent  for  the 
village  board  to  provide  that  it  should  take  ef- 
fect at  some  future  time,  or  on  the  happening 
of  some  futm-e  event.  The  board  provided 
that  it  should  take  effect  and  be  in  force  from 
and  after  its  passage  and  publication.  It  is 
fair  to  assume  that  the  board  intended  by  the 
use  of  the  latter  term  a  publication  for  one 
week,  as  the  term  is  used  in  section  21.  The 
ordinance  was  first  inserted  in  the  official 
newspaper  on  Julj'  19th,  and  the  week  expired 
July  26th;  hence  we  think  that  the  ordinance 
could  not  have  taken  effect  until  the  latter 
date.  It  is  the  same  as  though  it  had  been  ex- 
pressly provided  therein  that  it  should  not  be 
in  force  until  July  26th,  Before  that  date  the 
motion  to  reconsider  the  vote  by  which  the  or- 
dinance was  passed  was  adopted.  Of  the  right 
of  the  village  board  to  reconsider  that  vote  at 
any  time  before  July  26th,  provided  it  was 


done  in  accordance  with  the  by-law  on  that   | 
subject,  we  can  entertain  no  doubt  whatever; 
and  in  such  case  it  would  seem  to  be  immate- 
rial had  the  company  accepted  the  prospective   f 
ordniance,  or  expended  money  on  the  faith  of 
it  before  the  reconsideration.    Such  acts  could  [ 
not  defeat  the  right  of  the  board  to  reconsid-  ; 
er  before  the  ordinance  took  effect.    Again,  let 
us  suppose  that  the  ordinance  was  in  force   I 
when  the  vote  to  reconsider  was  passed.    The 
ordinance  was  a  voluntary  grant  of  a  privilege  | 
or    easement    to   the    Hygeia    Company,    for  • 
which   the   village   received   no    consideration 
whatever.    It  was  purely  gratuitous,  and,  un-   / 
til  accepted  and  acted  upon  by  the  grantee,  j 
was  a  mere  license,  which  the  grantor  might  ! 
revoke  at  its  pleasure.     The  grantor  did  re- 
voke it  by  reconsidering  the  vote  adopting  it  / 
before  the  ordinance  was  accepted  or  acted 
upon    by    the    grantee,    in    strict    compliance 
with  the  by-laws  of  the  village  board  in  that  / 
behalf.     Hence,  in  any  view  of  the  case,  we 
are  impelled  to  the  conclusion  that  when  the   / 
Hygeia   Company  threatened   and   attempted   ' 
to  .exercise  rights  under  the  ordinance  to  the 
injury  of  the  streets  of  the  village  and  of  the    , 
owners  of  lands  abutting  on  such  streets,  it 
acted  without  authority  of  law,  and  the  court 
properly  enjoined  it  from  doing  such  acts. 
Order  affirmed. 


190 


MUNICIPAL   ORDINANCES. 


OITY  OF  DETROIT  v.  FT.  WAYNE  &  B.  I. 
RY.  CO. 

(54  N.  W.  958,  95  Mich.  456.) 

Supreme  Court  of  Michigan.    April  28,  1893. 

Original  petition  for  mandamus  by  the 
city  of  Detroit  to  compel  the  Ft.  Wayne 
&  Belle  Isle  Railway  Company  to  comply 
with  the  conditions  in  an  ordinance  enacted 
by  the  city.     Writ  issued. 

John  J.  Speed,  for  relator.  Edwin  P. 
Conely,  for  respondent. 

McGRATH,  J.  Respondent,  by  virtue 
of  an  ordinance  adopted  in  1SG5,  is  operat- 
ing a  street  railway  in  the  city  of  Detroit, 
and  this  is  an  application  for  a  mandamus 
to  compel  the  said  company  to  comply  with 
the  provisions  of  an  ordinance'  enacted  in 
January,  1S93,  requiring  it  to  "issue  and 
I  sell,  by  its  conductors,  or  their  duly-author- 
'  ized  agents,  to  persons  applying  therefor, 
,  upon  each  and  every  car  operated  by  said 
'  company  within  the  limits  of  the  city  of 
.  Detroit,  ticliets,  to  be  good  for  transporta- 
'  tion  over  the  entire  route  of  said  com- 
,  pany,  or  any  portion  thereof,  traveUng  con- 
'  tinuously  either  way,  between"  certain 
hours,  at  the  rate  of  8  tickets  for  25  cents. 
The  ordinance  contains  separate  sections 
maJdug  each  day's  neglect  to  comply  there- 
Avith  an  offense  punishable  by  fine,  and 
\  providing  for  the  collection  of  such  fine  in 
an  action  at  law.  Respondent,  as  assignee 
of  the  Ft.  Wayne  &  Elmwood  Railway 
Company,  is  operating  a  street  railway  un- 
der an  ordinance  passed  January  31,  18G5, 
and  the  amendments  thereto  since  enacted. 
The  rate  of  fare  was  originally  fixed  at 
5  cents,  but  by  an  amendatory  ordinance 
passed  in  1889  it  was  provided  that  be- 
tween certain  hours  said  company  should 
Issue  and  sell  tickets  at  the  rate  of  8  tickets 
for  25  cents.  Respondent  accepted  that 
ordinance,  as  it  had  those  previously  en- 
acted. It,  however,  refuses  to  accept  the 
ordinance  enacted  in  January,  1893,  or  to 
comply  Avith  its  terms.  It  answers  that 
such  tickets  are  kept  for  sale  at  certain 
places;  that  there  are  other  street-railway 
companies  operating  railways  within  the 
limits  of  the  city  of  Detroit,  not  regulated 
in  respect  of  tickets  by  this  or  any  other 
ordinance,  and  sets  forth  the  following  rea- 
sons why  it  should  not  be  compelled  to 
comply  with  the  provisions  of  the  ordinance: 
(1)  The  company  is  furnishing  the  tickets 
in  reasonable  quantities  and  in  reasonable 
places.  (2)  The  ordinance  is  illegal  and 
void  in  this:  (a)  Tliat  the  common  council 
of  the  city  of  Detroit  has  no  authority  to 
pass  any  such  ordinance;  (b)  that  the  rela- 
tions of  the  city  of  Detroit  with  the  respond- 
ent are  of  a  contractual  nature,  and  the 
same  cannot  be,  in  this  regard,  enforced 
by  a  penal  ordinance;  (c)  that  the  ordinance 
seejis  to  regulate  the  internal  and  business 


affairs  of  the  respondent;  (d)  that  the  or- 
dinance is  penal,  and  invalid,  because  it 
undertakes  to  select  one  individual  and 
punish  him  for  a  violation  of  it;  (e)  that 
the  ordinance  is  unequal  in  its  operation; 
(f)  that  the  ordinance  is  not  a  proper  ex- 
ercise of  the  police  power  delegated  to  the 
municipahty. 

The  Ft.  Wayne  &  Elmwood  Railway  Com- 
pany was  organized  in  July,  18G5.  under 
chapter  94  of  Howell's  Statutes.  Said  act 
was  subject  to  amendment,  and  in  1SG7 
tbe  following  section^  was  added  thereto: 
"All  companies  or  corporations  formed  for 
such  purpose  shall  have  the  exclusive  right 
to  use  and  operate  any  street  railways  con- 
stinicted,  owned,  or  held  by  them:  pro- 
vided, that  no  such  company  or  corporation 
shall  be  authorized  to  construct  a  railway 
under  this  act  through  the  streets  of  any 
town  or  city  without  the  consent  of  the 
municipal  authorities  of  such  town  or  city, 
and  under  such  regulations  and  upon  such 
terms  and  conditions  as  said  authorities 
may  from  time  to  time  prescribe:  provided, 
further,  that  after  such  consent  shall  have 
been  given  and  accepted  by  the  company 
or  corporation  to  which  the  same  is  grant- 
ed, such  authorities  shall  make  no  regula- 
tions or  conditions  whereby  the  rights  or 
franchises  so  granted  shall  be  destroyed  or 
imreasonably  impaired,  or  such  company  or 
coiporation  be  deprived  of  the  right  of  con- 
structing, maintaining,  and  operating  such 
railway  in  the  street  in  such  consent 
or  grant  named,  pursuant  to  the  terms 
thereof."  The  ordinance  of  1SG5,  imder 
which  said  company  began  operations,  con- 
tained the  following  reservation,  which  is 
still  in  force:  "It  is  hereby  reserved  to  the 
common  council  of  the  city  of  Detroit,  the 
right  to  make  such  further  rales,  orders, 
or  regulations  as  may  from  time  to  time 
be  deemed  necessary  to  protect  the  inter- 
est, safety,  welfare,  or  accommodation  of 
the  public  in  relation  to  said  railway."  In 
the  absence  of  this  reservation  in  the  or- 
dinance, it  could  not  be  said  that  the 
rights  and  franchises  of  the  respondent  are 
destroyed  or  unreasonably  impaired  by  the 
requirement  sought  to  be  enforced;  but, 
mdependently  of  this  statutory  provision, 
the  reservation  contained  in  the  ordinance 
itself,  viz.  "to  make  such  further  rules  and 
regidations  as  may  from  time  to  time  be 
deemed  necessary  to  protect  the  interest, 
welfare,  or  accommodation  of  the  public," 
certainly  includes  the  right  to  enact  an  or- 
dinance providing  that  the  company  shall, 
for  the  acconuuodation  of  the  public,  keep 
tickets  for  sale  upon  its  cars.  Ordinances 
containing  grants  are  constnied  liberally  in 
favor  of  the  public.  It  cannot  be  contended 
that  the  relation  created  by  the  ordinance 
is  contractual,  and  at  the  same  time  that 
the  reservation  was  of  the  right  to  enact 
police  regulations  only.     The  right  to  exer- 


1  Section  3527. 


ENFORCEMENT  BY  FINES. 


191 


r  cise  police  power  exists  indopoudont  of  the 
reservation,     and     could    not    bo     bartered 
1  away.     The    contract   is    not    unihitoral,    in- 
\  tended  as  a  shield  for  respondent  alone. 

Tlie  riglit  of  a  mimicipality,  nnder  the 
statute,  to  refuse  its  consent  to  the  opera- 
tion of  a  street  railway  in  its  streets  is 
an  absolute  one,  and  its  power,  in  the  first 
instance,  to  impose  conditions,  is  iinlimited. 
The  nature  of  the  conditions  imposed  does 
not  depend  upon  other  grants  of  power. 
Respecting  the  imposition  of  further  condi- 
tions after  consent  given,  it  is  only  neces- 
sary that  the  municipality  keep  within  the 
scope  of  the  reservation.  In  the  recent 
case  of  Sternberg  v.  State,  (Neb.)  54  N.  W. 
Rep.  553,  a  similar  ordinance  was  sustained 
under  general  provisions  subjecting  the  com- 
pany "to  all  reasonable  regulations  in  the 
construction  and  use  of  said  railway  wUch 
may  be  imposetl  by  ordinance,"  and  empow- 
ering the  municipality  "to  fix  and  determine 
the  fare  charged."  The  court  held  that  the 
power  to  fix  rates  of  fare  neces-sarily  car- 
ried with  it  all  incidents  necessary  to  cany 
the  power  into  effect.  "A  street  railway 
has  no  depots.  Its  stations  are  the  street 
corners,  and  its  business  with  the  pubUc 
is  conducted  on  its  cai-s;"  and  that  it  was 
not  unreasonable  to  require  the  company 
to  sell  its  tickets  at  its  place  of  doing  busi- 
ness. In  Railway  Co.  v.  Berry,  (Ky.)  18 
S.  AV.  Rep.  102G,  it  was  held  that  an  or- 
dinance reqmring  a  street-cjir  company  to 
put  a  driver  and  conductor  on  each  car  was 
a  proper  exercise  of  the  city's  police  power, 
and  not  an  impairment  of  the  company's 
rights,  not  being  unreasonable  or  oppres?:- 
ive.  See,  also,  Railway  Co.  v.  Pluladolphia, 
58  Pa.  St.  119.  In  the  present  case  the 
power  exercised  was  that  reserved  in  the 
original   grant. 

r  The  only  question  that  remains  is  whether 
/  or  not  the  penal  provisions  of  the  ordinance 
V.  can  bo  sustained.  Even  if  Invahd,  the  other 
provisions  of  the  ordinance  do  not  neces- 
sarily fall  with  them.  It  is  well  settled 
that  an  ordinance  may  bo  good  in  part,  al- 
though bad  in  part.  It  is  only  neces.sary 
that  the  good  and  bad  parts  be  so  distinct 
and  independent  that  the  invalid  parts  may 
be  eliminated,  and  that  what  remains  con- 
tains aU  the  essentials  of  a  complete  or- 
dinance. Dill.  Mun.  Corp.  §  421;  State  v. 
Hardy,  7  Neb.  377;  St.  Louis  v.  St.  Loms 
R.  Co.,  89  'Mo.  44,   1   S.  W.   Rep.   305,  and 


14  Mo.  App.  221.     The  general  rule  Is  that 
ordinances  shoidd  be  general  in  their  nature, 
and     impartial     in     their     operation.     Ordi- 
nances,  however,   containing  grants,   are  of 
necessity   several   and   independent   of   each 
other.     The  conditions  imposed  and  require- 
ments exacted  are  necessarily  different,  de- 
pending upon   many   and   varied   considera- 
tions.    These     ordinances     are     adapted    to 
these  varying  conditions  and  circimistances. 
An  ordinance  prohibiting  a  particidar   rail- 
road   corporation    by    name    from     running 
locomotives   by   steam   on  a   specific   street 
does    not    contravene   the    principle   stated. 
Railroad   Co.    v.    Richmond,   96   U.    S.    521. 
It  does  not  follow  that  a  like  reservation 
is   contained    in     every   other    railway    or- 
dinance.    While  it  is   true   that   ordinances 
of  this  class  have  been  held  to  partake  of 
the  nature  of  contracts,  yet  they  are  none 
the   less   by-laws,    and    have   the   force    and 
effect,    in   favor    of    the    mimicipality,    and 
against    persons    boimd     thereby,    of    laws 
passed  by  the  legislature  of  the  state.     The  | 
power   to   enact   an   ordinance   involves   all  j 
the  incidents  necessary  to  give  effect  there-/ 
to.     The  charter  of  the  city  of  Detroit  (sec- 
tion 142)   empowers  the  common  council  to  1 
punish    the    violation   of   any    ordinance   by  / 
imposing  a   fine.     Irrespective    of    this    ex- 
press authority,   a  municipality  has  an  im- 
plied power  to  provide  for  the  enforcement 
of  its  ordinances  by  reasonable  and  proper 
fines.     1  Dill.  Mim.  Corp.  §  338.     The  reser- 
vation  in    an   ordinance   to   impose   further 
conditions  involves  the  right  to  provide  for  I 
the   enforcement,  of  such   conditions  iu  the/ 
manner  provided   by   law.     The  apphcation  | 
of  the  rule  contended  for  to  this  class  of 
cases    would    prevent    this    method    of    en- 
forcement  of    any    conchtion    imposed     by 
virtue   of  a   reservation   of   this   character. 
The   common  council  having  the  power  to  ( 
impose    the    condition    in     question     by    or-  / 
dinance,  it  has,  as  incident  thereto,  the  pow-  / 
er   to   pi'ovide    for    its    enforcement.     The/ 
general  rule  above  stated  must  be  held  to  / 
apply  only  to  regulations,  the  authority  to 
enact   which   depends   solely   upon   the   ex-  I 
ercise  of  poUce  powers,   and  not  to   condi-    . 
tioiis  imposed  by  an  ordinance,  enacted  by   ' 
virtue  of  a  reservation  in  a  by-law,  which  j 
partakes    of    the   character    of    a    contract. 
The   ordinance   is   therefore   valid,    and    the 
writ   of   mandamus   must   issue   as   prayed. 
The  other  justices  concm'red. 


192 


MUNICIPAL    SECURITIES. 


RATHBONE  v.  BOARD  OF  COM'RS  OF 
KIOWA  COUNTY. 

(73  Fed.  395.) 

Circuit  Court,  D.  Kansas,   Second  Division. 
March  19,  1896. 

No.  467. 
This  was  an  action  by  diaries  D.  Rath- 
bone  against  the  board  of  county  commission- 
ers of  the  coimty  of  Kiowa,  Kan.,  upon  cou- 
pons of  county  railway-aid  Iwnds.  Plaintiff 
has  demurred  to  the  answer  filed  by  the  de- 
fendant. 

Gleed,  Ware,  &  Gleed,  for  plaintiff.  S.  S. 
Ashbaugh  and  L.  M.  Day,  for  defendant. 

WILLIAMS,  District  Judge.  This  suit  is 
instituted  upon  past-due  coupons,  detached 
from  16  bonds,  of  $1,000  each,  issued  by  the 
defendant  county  to  the  Kingman.  Pratt,  & 
Western  Railroad  Company,  and  upon  past- 
due  coupons,  detached  from  30  bonds  issued 
by  the  defendant  to  the  Chicago,  Kansas  &, 
Nebraska  Railway  Company.  In  each  in- 
stance, the  bonds  were  issued  in  payment  of 
stock  subscribed  for  by  the  defendant,  in  the 
respective  companies. 

Without  stating  the  matters  alleged  in  the 
answer  in  detail,  it  will  be  sufficient  to  say 
that  the  defendant  county  avers  the  bonds 
were  issued  by  persons  who  were  not  clothed 
with  power  to  issue  the  same,  in  disregard  of 
the  law  governing  the  issue  of  this  class  of 
bonds,  and  that  the  amount  issued  is  in  excess 
of  that  which  could  be  issued  under  the  law. 
To  the  answer  a  general  demurrer  has  been 
filed.  All  the  steps  taken  by  the  county  offi- 
cers, in  relation  to  the  election,  the  canvass 
of  the  vote,  and  making  of  the  subscriptions, 
if  done  at  a  time  when  the  law  authorized 
them  to  be  done,  appear  to  be  regular. 

The  laws  of  Kansas  authorize  counties  to 
subscribe  for  stock  in  railroad  companies,  and 
pay  for  the  same  with  bonds  of  the  character 
of  those  from  which  the  coupons  in  suit  are 
detached.  The  amount  of  indebtedness  which 
may  thus  be  created  is  fixed  by  statute: 

"No  county  shall  issue,  under  the  provisions 
of  this  act,  more  than  one  hundred  thousand 
dollars,  and  an  additional  five  per  cent,  in- 
debtedness, of  the  assessed  value  of  such 
county,  and  In  no  case  shall  the  total  amount 
issued  to  any  railroad  company  exceed  four 
thousand  dollars  per  mile,  for  each  mile  of 
railroad  constructed  in  said  county."  Comp. 
Laws  1885,  p.  783,  §  68. 

The  courts  of  Kansas,  in  the  construction 
of  this  act,  have  held  that,  after  a  proper 
petition  has  been  filed,  the  board  of  commis- 
sioners of  the  county  can  be  compelled  to 
make  an  order  for  the  holding  of  an  election 
and  submit  the  proposition  of  voting  bonds 
to  the  voters  of  the  county.  They  have  also 
held  that,  after  a  subscription  has  been  made, 
the  officers  designated  by  the  statute  to  sign 
the  bonds  can  be  compelled  to  sign  the  same. 
In  addition  to  this,  they  have  held  that,  after 


the  subscription  has  been  properly  made  and 
accepted,  this  creates  a  binding  contract 
which  can  be  enforced  by  law. 

As  will  be  seen,  the  amount  of  bonds  which 
may  be  issued  by  any  county,  under  the  law, 
is  $100,000,  and  an  additional  5  per  cent,  in- 
debtedness of  the  assessed  value  of  such 
county.  The  assessed  value  of  the  defendant 
county,  on  the  23d  of  March,  1886,  was  .$236,- 
662.  The  greatest  amount  of  bonds  then 
which  could  be  issued,  under  the  act,  was 
$111,833.10.  There  were  two  propositions  for 
bonds  before  the  board  of  commissioners. — the 
one  for  $115,000  to  one  company,  and  $120,- 
000  to  another,  the  two  amounts  aggregating 
$2.35,000;  and  the  assessed  value  of  the  coim- 
ty was  only  $236,662.  Both  propositions  were 
submitted  to  the  voters  at  the  same  election, 
and  both  were  declared  carried.  Either  of 
the  sums  so  voted  is  gi-eater  than  the  limit 
prescribed  by  the  act.  But  it  was  held,  in  \ 
Chicago,  K.  &  W.  R.  Co.  v.  Commissioners  of 
Osage  Co.,  38  Kan.  597,  16  Pac.  828,  that  the 
voting  for  more  bonds  than  could  be  lawfully  \ 
issued  did  not  invalidate  the  vote,  and  that  I 
bonds,  under  such  a  vote,  might  be  issued  to 
the  lawful  hmit.  Hence,  the  question  of  the 
amount  voted  passes  out  of  the  discussion. 

On  the  25th  of  June,  1886,  the  board  of  com- 
missioners authorized  the  county  clerk  to 
make  a  subscription  to  the  Chicago,  Kan.sas 
&  Nebraska  Railway  Company  for  1,200 
shares,  of  $100  each.  The  order  is  as  follows: 
"And  the  said  board  of  commissioners  of  said 
county,  as  provided  for  in  said  proposition, 
and  by  law  in  such  case,  do  now  and  hereby 
order  and  direct  that  the  county  clerk  of  said 
county  of  Kiowa,  state  of  Kansas,  do  and 
shah,  for  and  in  behalf  and  in  the  name  of 
said  county  of  Kiowa,  at  once,  subscribe,  and 
make  due  and  proper  subscription  of,  twelve 
hundred  shares,  of  one  hundi'ed  dollars  each, 
to  the  capital  stock  of  the  said  Chicago,  Kan- 
sas &  Nebraska  Railway  Companj-,"  etc.  In 
pursuance  of  this  order,  and  on  the  same  day, 
the  county  clerk  executed  the  following  in- 
strument: "Whereas,  on  the  25th  day  of 
June,  1886,  the  board  of  county  commission- 
ers of  the  county  of  Kiowa,  in  the  state  of 
Kansas,  did  make  and  enter  of  record,  upon 
the  jovu'nals  of  its  proceedings,  an  order  di- 
recting the  coimty  clerk  of  said  county  of 
Kiowa,  for  and  in  the  name  and  on  behalf  of 
said  county  of  Kiowa,  to  make  due  and  proper 
subscription  to  twelve  hundred  shares,  of  one 
hundred  dollars  each,  of  the  capital  stock  of 
the  Chicago,  Kansas  &  Nebraska  Railway 
Company,"  etc.:  "Now,  therefore,  I,  J.  M. 
Crawford,  county  clerk  of  the  coimty  of 
Kiowa,  state  of  Kansas,  in  pursuance  of  the 
statute  in  such  case  made  and  provided,  and 
in  obedience  to  the  said  order  of  the  board  of 
county  commissioners,  do  hereby  subscribe  to, 
and  make  subscription  of.  twelve  hundred 
shares,  of  one  hundred  dollars  each,  of  the 
capital  stock  of  said  Chicago,  Kansas  &  Ne- 
braska Railway  Company,  for  and  on  behalf 
of  and  in  the  name  of  the  county  of  Kiowa, 


CAN  POAVEIi  TO  ISSUE  BONDS  BE  IMPLIED. 


193 


state  of  Kansas,  and  I  do  hereby  take  twelve 
Imudred  shares  of  the  capital  stock  of  said 
lailway  company,  in  the  name  of  said  county, 
and  for  its  behalf  and  benefit,"  etc.  "In  tes- 
timony whereof,  I  have  executed,  and  signed 
and  executed,  this  instrument  and  subscrip- 
tion, b3'  subscribing  my  name  hereunto,  as 
county  clerk  of  said  county,  and  attest  in.u;  the 
same  under  the  seal  of  the  said  county  of 
Kiowa,  state  of  Kansas,  at  my  office  in 
Greensburg,  the  county  seat  of  said  county, 
this  25th  day  of  June,  ISSO.  [Signed]  J.  N, 
Crawford,  County  Cleric  of  the  County  of 
Kiowa,  State  of  Kansas.  Approved:  J.  W. 
(iibson,  J.  L.  Hadley.  Board  of  County  Com- 
missioners of  Kiowa  County,  Kansas." 

The  action  of  the  county  clerk,  in  executing 
this  instrument,  on  the  day  of  its  execution, 
was  reported  to  the  board  of  county  commis- 
sioners, and  it  made  the  following  order 
thereon:  "The  clerk  of  said  county  thereupon 
informs  the  board  of  county  commissioners  of 
said  county  of  Kiowa  that,  in  obedience  to  the 
foregoing  order,  he  has  made  the  subscription 
of  stock,  as  required  by  said  order,  and  now 
submits  the  same  for  approval,  which  is  done 
by  said  board,  and  the  said  board  further 
orders  that  the  subscription,  so  made  by  the 
county  clerk,  be  copied  and  spread  upon  the 
minutes  and  record  of  proceedings  of  said 
board,  and  that  said  subscription  be  delivered 
to  said  company,  as  provided  in  the  foregoing 
order,  and  it  is  accordingly  so  done." 

This  action  of  the  board  of  county  commis- 
sioners, in  connection  with  that  of  the  county 
clerk,  on  the  2.5th  day  of  June,  ISSG,  imder  the 
adjudications  of  the  courts  of  Kansas,  con- 
stituted a  concluded  contract,  if,  at  the  time 
these  acts  were  performed,  the  parties  per- 
forming them  had  the  power  to  act  for  and 
bind  the  county. 

On  the  2d  of  August,  1SS6,  the  board  of 
commissioners  of  said  county  made  the  fol- 
lowing order:  "Board  ordered  clerk  to  sub- 
scribe for  eleven  hundred  and  fifty  shares  of 
the  Kingman,  Pratt  &  Western  Bailroad 
Company,  at  the  value  of  one  hundred  dollars 
each,  for  the  benefit  of  said  county  of  Kio- 
wa." On  the  same  day  the  county  clerk  exe- 
cuted a  similar  instrument  to  that  mentioned 
in  the  case  of  the  subscription  to  the  Chicago, 
Kansas  &  Nebraska  Kailway  Company. 

Waiving,  for  the  time  being,  the  question 
of  whether  the  board  of  commissioners  of 
Kiowa  county  had  the  power  to  order  a  vote 
on  the  proposition  submitted,  and  whether 
they  could  make  a  binding  subscription,  upon 
which  bonds  might  thereafter  be  issued,  un- 
til after  the  expiration  of  one  year,  the  ques- 
tion is,  which  of  these  subscriptions  shall 
stand?  The  supreme  court  of  Kansas  has 
settled  this  precise  question.  In  Chica"go,  K. 
&  W.  R.  Co.  V.  Commissioners  of  Osage  Co., 
38  Kan.  597,  IG  Pac.  S2S,  which  was  a  pro- 
ceeding by  mandamus  to  compel  the  issue  of 
bonds  voted  to  that  company,  it  appears 
there  had  been  two  votes,  as  in  the  case  at 
bar,  to  different  companies,  and  the  amount 
ABB.CORP.— 13 


of  the  two.  when  added  together,  or  taken 
singly,  exceeded  the  amount  of  bonds  which 
might  lawfully  be  issued.     The  defense  was 
a  subscription  had  been  made  to  the  Kansas, 
Nebraska  &  Dakota  Railroad  Company,  and 
that  a  delivery  of  bonds  had  been  made  to 
that  company  in  payment  of  such  subscrip- 
tion, and  that  this  had  exhausted   the   full 
amount  which  might  be  lawfully  issued  by 
the    respondent    in    aid    of    railroads.     The 
court,  in  speaking  in  response  to  that  conten- 
tion,  say:    "No   county  can,   under   any  cir- 
cumstances, issue  more  than  $100,000  and  an 
additional  5  per  cent,  indebtedness  of  the  as- 
sessed  value  of   each   county.     This  is   the 
limit  of  their  power  to  issue  bonds,  for  rail- 
road purposes,    under  the  provisions  of  the 
act.     *     *     *     This  issue  may  be  to  only  one 
railroad   company,   or  it  may  be   divided   be-    / 
tween  several;    but,  if  the  full  amount  is  at   I 
first  subscribed  to  some  one  railroad  company,    I 
it    [the    county]    has    no    power    to    subscribe 
to   the  capital   stock   of  any  other   railroad 
company.    *    *    *    if   jt   subscribes   the  full    f 
amount  allowed  to  one  company,  its  power  is   / 
exhausted,  and  it  cannot  subscribe  to  others."  ' 
This  being  true,  it  follows  that  all  the  bonds 
issued  to  the  Kingman,  Pratt  &  Western  Rail-    I 
road  Company  are  void,  because  the  limit  of  / 
bonds   wliich   might  lawfully   issue   had  been  ( 
reached  and   exhausted  when   the   subscrip- 
tion was  made,  on  the  25th  of  June,  18S6.  to    / 
the   Chicago,   Kansas   &   Nebraska   Railway   | 
Company.     The    bonds   issued   to   the  King- 
man, Pratt  &  Western  Railroad  Company  re- 
cite that  they  are  issued  under  an  act  entitled 
"An  act  to  enable  counties    *    *    *    to  aid  in 
the  construction  of  railroads  and  to  repeal 
section   eight  of  chapter    thirty-nine   of   the 
Laws  of  1S74,"  approved  February  25,  1876, 
and  by  acts  of  said  legislature  amendatory 
thereof  and  supplemental  thereto.     This  act 
informed  every   dealer  in  bonds  purporting- 
to  be  issued  under  the  provisions  of  that  act 
that  no  more  than  $100,000  and  the  5  per 
cent,  therein  mentioned  could  be  issued  there- 
under.    An  examination  of  the  records  of  the 
county  would  have  shown  the  power  to  issue 
bonds  had  been  exhausted. 

At  this  late  day  it  is  hardly  worth  while  to  I 
indulge  in  an  extended  citation  of  authori-  I 
ties  in  support  of  the  proposition  that  eveiy  | 
dealer  in  municipal  bonds  which,  upon  their 
face,  refer  to  the  statute  under  which  they 
were  issued,  is  bound  to  take  notice  of  the 
statute  and  all  its  requii-ements,  and  of  an 
equally  well-settled  rule  that,  if  there  is  a 
want  of  iwwer  to  issue  the  bonds,  they  are  in- 
valid in  the  hands  of  innocent  purchasers,  re- 
gardless of  other  recitals  therein  contained. 
In  Nesbit  v.  Independent  Dist,  144  U.  S.  G17, 
12  Sup.  Ct.  74G,  a  statute  was  under  consid- 
eration which  declared  that  "no  county  shall 
become  indebted,  in  any  manner,  or  for  any 
purpose,  to  any  amount,  in  the  aggregate  ex- 
ceeding five  per  centum  on  the  value  of  the 
taxable  property  within  such  county";  and 
the  court  say:     "She  was  bound  to  take  no- 


194 


MUNICIPAL,    SECURITIES. 


tice  of  the  value  of  taxable  property  within 
the  district,  as  shown  by  the  tax  list."  A  like 
question  arose  in  Sutliff  v.  Commissioners, 
147  U.  S.  2M,  13  Sup.  Ct.  318,  imder  a  similar 
provision;  and  the  court  held  the  purchaser 
of  the  bond  was  bound  to  take  notice  of  the 
valuation  of  the  taxable  property  of  the 
county. 

As    against    both    classes    of    bonds    from 
which  the  coupons  in  this  suit  are  detached, 
the   objection    is   made    that   Kiowa    county 
could  not  vote  for  or  issue  bonds  within  one 
year    after    its    organization.      On    the    other 
hand,  it  is  contended  that  there  is  nothing  in 
the  law  which  inhibited  the  defendant  county 
from  voting  to  issue  bonds  within  one  year 
after    its    organization,    and    that   the    inhibi- 
tion in  the  statute  in  relation  to  new  counties 
relates,  solely,  to  the  issuing  of  bonds.     In 
that  behalf  it  is  urged  that  the  proviso  which 
contains  the  limitation  against  the  issue  of 
bonds  by  counties  which  have  not  been  organ- 
ized one  year  does  not  withhold  the  power 
to  vote  therefor.     The  most  that  can  be  said 
of  a  contention  of  this  kind  is  that  the  power 
claimed  on  behalf  of  a  new  county  to  vote  for 
bonds  within  a  year  after  its  oi'ganization  is 
to  be  found  in  the  silence  of  the  statute.     It 
is  conceded  that,   in   the  matter   of   issuing 
bonds,   counties  which  have  been  organized 
Jess  than  one  year  are  not  upon  an  equality 
\  with  covmties  that  have  passed  the  year  of 
probation.     \Yhile  this  is  conceded,  it  is  de- 
nied that  there  is  any  inequality  as  to  the 
power  of  voting  to  issue  bonds.     The  rule  of 
law   in   relation   to   the   issue   of   negotiable 
bonds  is  that,  whenever  the  power  to  issue  is 
called  in  question,  the  authority  to  issue  must 
be  clearly  shown,  and  will  not  be  deduced 
from  uncertain  inferences,  and  can  only  be 
conferred  by  language  which  leaves  no  rea- 
sonable doubt  of  an  intention  to  confer  it 
Brenham  v.  Bank,  144  U.  S.  173,  12  Sup.  Ct. 
559;    Ashuelot  Nat.  Bank  of  Keene  v.  School 
Dist.  No.  7,  Valley  Co.,  5  C.  C.  A.  4G8,  5G  Fed. 
197.     It  seems  to  me  that  the  power  claimed 
for  the  issue  of  the  bonds  in  question  rests 
entirely    iqwn    uncertain    inferences,    rather 
than  upon  afRrmative  language,  which  leaves 
the  mind  free  from  doubt,  as  to  the  exercise 
of  the  power  claimed.     In  the  year  1876,  the 
legislature  of  Kansas  passed  an  act,  of  a  gen- 
eral  nature,   providing  for  the   organization 
of  new  counties.     In  that  act  there  vwas  a 
provision  which  declared  "that  no  bonds,  of 
any    kind,    shall   be    issued   by   any   county, 
township  or  school  district,  within  one  year 
after  the  organization  of  such  new  county." 
On  the  18th  of  February,  ISSG,  it  passed  an- 
other act.   covering  the  same   subject  as  the 
act  of  1870.     This  new  act  was  a  revision  of 
the  old,  required  a  greater  population,   and 
threw   some   safeguards  around   the   organiza- 
tion of  new  counties  which  were  not  in  the 
act  of  187G.     In  addition  to  this,  it  placed  two 
provisos  m  the  act  of  1886,  which  are  as  fol- 
lows:    "ProvidtMi,    that    none    of    the   provi- 
sions of  this  act  shall  prevent  or  prohibit  the 


county     of     Kiowa     *     *     *     from     voting 
bonds,  at  any  time,  after  the  organization  of 
said  county.     And  provided,  further,  that  no 
bonds  of  any  kind  shall  be   issued  by  any 
county,    township   or   school   district,   within 
one  year  after  the  organization  of  such  new 
county."     While  this  act  was  in  force,  on  the 
22d  of  June,  1S86,  an  election  was  held  in 
Kiowa  county,  and  a  vote  was  taken  on  a 
proposition  to  subscribe  $115,000  to  the  King- 
man,   Pratt    &    Western    Railroad   Company 
and  $120,000  to  the  Chicago,  Kansas  &  Ne- 
braska Railway  Company,  and  the  vote  was 
canvassed  on  the  25th  of  June,  ISSG,  and  the 
vote   for   both    companies   declared   cai'ried. 
On  the  10th  of  February,  ISSG,  the  legisla- 
ture passed  an  act,  entitled  "An  act  to  restore 
or  re-create  the  county  of  Kiowa,"  and  on 
the  ISth  of  February,  1886,  another  act  was 
passed,  making  Kiowa  county  a  part  of  the 
Thirty-Ninth  senatorial  district,   and  on  the 
19th  another  act,  placing  that  county  in  the 
Twenty-Fourth  judicial  district.     These  acts 
have  no  material  bearing  on  this  case,  and 
are  referred  to  only  to  show,  hereafter,  that 
the  legislature  had  knowledge  and  took  cog- 
nizance of  the  fact  that  the  people  residing 
upon  the  territory  out  of  which  the  county 
was   created   expected,  at  an  early  day,   to 
have  a  county  organization,  and  why  the  leg- 
islature attempted  to  permit  Kiowa  county 
to  exercise  a  power  which  it  did  not  grant  to 
other  new  counties,  which  had  not  obtained 
a  perfect  county  organization.     Kiowa  coun- 
ty, at  the  date  of  these  acts,  had  not  become 
an  organized  county,  under  the  laws  of  the 
state.      The   census    taker,    appointed    by   the 
governor,  on  the  19th  of  March,  1S8G,  filed 
his  report,  and  on  the  23d  of  ^Nlarch.  1886,  the 
governor  made  proclamation,  that  there  were 
2,704   bona   fide  inhabitants   in   said   county, 
that  549  of  them  were  householders,  and  that 
the  value  of  the  taxable  property  in  the  coun- 
ty was  $236,662,  and  appointed  three  commis- 
sioners and  a  county  clerk  for  said  county. 
It  is  conceded  that  these  officers  qualified  on 
the  27th  of  March,  1886,  and,  under  the  law, 
that  from  and  after  that  date  it  was  organ- 
ized into  what  under  the  law  of  Kansas  is 
call(>d  a  "new  county,"  and  that  it  might  do 
and  perform  whatever  a  new  county  might 
do. 

Assuming,  for  the  sake  of  argumeut.  that 
the  language  of  the  proviso,  found  in  the  act 
of  1886,  which  declares  that  "none  of  tlie  pro- 
visions of  this  act  shall  prevent  or  prohibit 
the  county  of  Kiowa,  or  any  township  or 
school  district  therein,  from  voting  bonds  at 
any  time  after  the  organization  of  said  coun- 
ty," confers  power  on  that  county  to  have 
voted  bonds  before  it  had  been  organized  one 
year,  the  question  arises,  as  to  whether  the 
legislature  could,  in  the  manner  it  so  attempt- 
ed, effect  that  object?  Section  17  of  article 
2  of  the  constitution  of  the  state  declares: 
"All  laws,  of  a  general  nature,  shall  have 
uniform  operation  throughout  the  state,  and 
in  all  cases  where  a  general  law  can  be  made 


CAN  POWEU  TO  ISSUE  BONDS  BE  IMPLIED. 


19( 


applicable,  no  special  law  shall  be  enacted." 
The  supreme  court  of  Kansas,  in  Darling  v. 
Rodgei-s,  7  Kan.  598,  declared  that  this  pro- 
vision of  the  constitution  of  the  state  was 
mandatorj',  and  not  directory.  That  the  act 
in  relation  to  the  organization  of  new  coun- 
ties is  a  general  law.  in  the  sense  that  word 
is  used  in  the  constitution,  does  not  admit  of 
doubt. 

In  Robinson  v.  Perry,  17  Kan.  248,  an  act 
declared:  "All  persons  owning  or  having 
sheep,  shaU  keep  the  same  from  running  at 
large,  except  in  this  act  otherwise  provided: 
provided,  that  the  provisions  of  this  act  shall 
not  apply  to  the  County  of  Doniphan."  This 
act  was  amendatory  of  an  act,  passed  in  1869, 
which  inhibited  sheep  from  running  at  large 
In  certain  counties,  unless  the  legal  voters  of 
those  counties  should,  by  vote,  otherwise  de- 
clare. The  court  held  that  the  act  of  18G9, 
which  exemptea  the  counties  named,  as  well 
as  the  act  in  question,  interfered  with  the 
uniform  operation  of  the  fence  act,  was  void, 
and  was  obnoxious  to  the  provision  of  the 
constitution  quoted.  Judge  Brewer,  in  dis- 
cussing this  provision  of  the  constitution, 
uses  this  language:  "The  language  is  plain 
and  positive  that  all  acts  of  a  general  nature 
shall  have  uniform  operation.  No  discretion 
is  left  to  the  legislatm-e  or  the  courts.  *  *  * 
Now,  the  fence  law  of  18G8  is,  without  ques- 
tion, a  law  of  a  general  nature,  and  of  uni- 
form operation  throughout  the  state.  No 
part  of  its  terms  are  repealed  by  the  herd 
law.  Tf  the  latter  act  be  valid,  the  former 
no  longer  has  a  uniform  operation  through- 
out the  state.  That  which  was  a  general 
law,  and  had  the  required  uniformity  of  op- 
eration, still  remains  the  general  law,  but  it 
is  deprived  of  such  uniformity.  *  *  * 
Tested  by  this  rule,  the  fence  act  of  1868  is 
valid,  and  the  herd  law  of  1870  void.  *  *  * 
But  it  is  contended  that  the  two  clauses  of 
this  constitutional  section  must  be  construed 
together,  and  the  iwsitive  requirements  of 
the  first  clause  considered  as  limited  by  the 
discretion  given  by  the  latter;  *  *  *  that 
power  to  pass  special  laws  carries  with  it  the 
power  to  limit  the  operation  of  the  general 
law  by  special  laws.  *  *  *  if  the  legisla- 
ture can,  by  simply  specifying  the  locality 
over  which  a  law  shall  operate,  change  a  law 
of  a  general  nature,  the  obligations  of  this 
valuable  constitutional  provision  are  weaker 
than  a  rope  of  sand." 
/  Now,  what  is  the  material  difference  between 
the  acts  referred  to  by  Judge  Brewer,  and  one 
that  reafLs  as  follows:  "No  bonds  of  any  kind, 
shall  be  issued  by  any  county,  within  one  year 
after  the  organization  of  such  new  coimty: 
provided,  that  the  provisions  of  this  act  shall 
not  apply  to  the  county  of  Kiowa."  The  act 
of  1SS6  was  evidently  enacted  as  a  general 
law.  and  intended  to  apply  to  the  organization 
of  all  new  counties  througliout  the  state.  To 
sustain  such  a  proviso  would  limit  its  uniform 
operation,  and  give  to  one  new  county  a  ix)wer 
or  privilege  which  the  other  new  counties  were 


not  permitted  to  have.  It  may  be  urged  that 
the  power  conferred  on  Kiowa  county  may  be 
sustained  by  treating  the  act  as  special.  To 
do  this  would  render  the  act  obnoxious  to  that 
provision  of  the  constitution  which  requires 
that  no  act  shall  contain  more  than  one  suliject, 
which  shall  be  expressed  in  the  title. 

It  is  contended  by  the  defendant  that  the 
provisos  in  the  act  of  1886  are  repugnant  to 
each  other,  and  that  the  last  one  must  prevail. 
That  contention  is  not  assented  to.  But  for 
the  fact  that  it  destroys  the  uniform  operation 
of  the  great  body  of  the  act  of  18.S6,  the  pro- 
viso might  M-ell  stand.  Kiowa  county,  as  has 
been  stated,  was  what  is  tei-med  "duly  organ- 
ized" on  the  27th  of  March,  1S8<;.  Having  ar- 
rived at  the  conclusion  tliat  the  proviso  in  re- 
lation to  that  county  is  void,  we  are  confront- 
ed with  the  other  proviso,  which  reads:  "No 
bonds  of  any  kind  shall  be  issued,  by  any 
county,  township  or  school  district,  within  one 
year  after  the  organization  of  such  county." 
All  law  writers  agi'ee  that,  in  the  construction 
of  a  statute,  the  intention  of  the  legislature 
should  prevail,  if  it  can  be  ascertained.  All 
agree  that  the  intent  may  be  gathered  fi'om  the 
act  itself,  and  the  supreme  court  of  the  United 
States  have  examined  the  coin-se  of  a  bill  in  the 
legislative  lx)dy,  and  previous  statutes  on  the 
same  subject,  for  the  purpose  of  arriving  at 
that  intent. 

The  defendant  insists  that  the  proviso  which 
declares  that  "no  bonds  of  any  kind  shall  be 
issued  by  any  county,  township  or  school  dis- 
ti-lct,  within  one  year  after  the  organization  of 
such  county,"  does  not  authorize  or  warrant  a 
new  county  to  take  any  of  the  preliminary 
steps  towards  the  issuing  of  bonds  until  after 
the  expiration  of  one  year  after  the  organiza- 
tion, and  that,  to  give  the  power  to  issue  bonds, 
three  prerequisites  must  consecutively  follow 
each  other:  (1)  the  resident  taxpayers  of  the 
county  must  present  the  character  of  petition, 
described  in  the  law,  to  the  board  of  commis- 
sioners; (2)  they  must  order  an  election,  and 
that  a  majority  of  the  votes  cast  thereat  must 
he  in  favor  of  the  issue  of  the  bonds:  i?,)  that 
the  board  of  commissioners  make  a  valid  sub- 
scription to  or  for  the  stock  of  the  company  in 
wiiose  favor  the  vote  was  had.  These  prereq- 
uisites are  common  knowledge,  especially  by 
dealers  in  bonds,  and  by  the  membei-s  of  a 
legislature;  for  the  courts  of  every  state  in  the 
Union,  as  well  as  the  courts  of  the  United 
States,  have  from  time  to  time  announced  these 
propositions,  in  cases  where  the  authority  to 
issue  was  predicated  uiwn  the  conditions  stat- 
ed. That  this  general  knowledge  exists  is  evi- 
denced by  the  proviso  which  the  legislature  of 
Kansas  incorporated  in  the  act  of  1SS«J  in  re- 
lation to  Kiowa  coimty.  It  had  under  con- 
sideration a  general  act  in  relation  to  the  or- 
ganization of  new  counties.  It  had  knowlelge 
of  the  fact,  as  its  legislation  shows,  that  Kiowa 
county,  or  rather  its  people,  were  seeking  to 
have  a  county  organization  at  an  early  day. 
It  was  revising  and  amending  an  act  in  rela- 
tion to  the  organization  of  new  counties,  in 


196 


MUNICIPAL    SECURITIES. 


\Yhicli  there  was  a  proTision  that  no  bonds 
should  be  issued  by  any  new  county  within 
one  year  of  its  organization.  It  proposed  to, 
and  did,  re-enact  that  proviso;  but  at  the  same 
time  it  desired  to  permit  the  then  unorganized 
county  of  Kiowa  to  exercise  a  function  which 
it  was  not  willing  should  be  exercised  by  any 
other  new  county  to  be  formed  thereafter. 
That  act  or  thing,  which  it  intended  to  permit 
Kiowa  county  to  do,  was  whatV  The  answer 
is  that  it  intended  to  give  to  that  county  the 
privilege,  not  of  issuing  bonds  within  a  year 
of  its  organization,  but  to  vote  for  the  issue  of 
bonds  within  that  year.  If  the  proviso,  as  it 
stood  in  the  act  of  1S7G,  and  as  carried  into 
that  of  1SS6,  conferred  upon  new  counties  the 
right  or  privilege  of  voting  for  bonds  within 
the  first  year  of  its  organization,  why  was  an 
attempt  made,  by  a  separate  proviso,  to  au- 
thorize it  to  do  what  it  is  now  claimed  it  might 
have  done  without  the  proviso?  The  proviso 
in  relation  to  Kiowa  county  evinces  an  intent. 
The  other  proviso  shows  another.  The  first 
intent  was  to  allow  Kiowa  county  to  vote  be- 
fore the  expiration  of  the  probationary  year. 
The  other  shows  an  intent  that  the  new  coun- 
ties to  be  thereafter  organized  should  not  have 
that  power.  The  question  of  allowing  new 
counties  to  vote  for  bonds  within  the  year  of 
minority  was  presented  by  the  case  of  Kiowa 
county,  and  it  is  plain,  from  what  was  done, 
that  there  was  no  intention  of  extending  a  like 
privilege  to  other  new  counties.  If  it  intended 
to  have  extended  the  privilege  of  voting  at  an 
earlier  period  than  one  year,  it  could  have 
made  that  intent  plain  by  saying  that  "nothing 
herein  contained  shall  prevent  any  county  from 
voting  for  bonds  within  a  year  of  its  organiza- 
tion." No  such  language  is  found,  and  no  such 
power  was  intended  to  be  granted. 

The  view  here  stated  is  borne  out  by  subse- 
quent legislation  on  the  same  proviso.  In  1887 
the  greed  to  vote  bonds  made  its  appearance 
before  the  legislature.  The  result  was  that 
the  proviso  was  amended  so  as  to  read:  "No 
bonds,  except  for  the  erectioji  and  furnishing 
of  school  houses,  shall  be  voted  for  and  issued 
by  any  coimty  or  township,  within  one  year 
after  the  organization  of  such  county."  Here 
the  question  of  voting  for  bonds  within  the 
year  was  again  up  for  consideration,  and  the 
right  was  extended,  not  to  counties  or  town- 
ships, but  to  school  districts.  If  the  school  dis- 
tricts had  the  right  to  vote  for  bonds,  under 
the  act  of  1880,  within  one  year  after  the  or- 
ganization of  the  county,  why  is  it  that.  In 
1887,  those  who  desired  that  power  for  the 
school  disrricts  desired  the  law  amended?  If 
a  school  district  had  the  power  to  vote  before 
the  expiration  of  a  year,  under  the  act  of  1880, 
the  counties  and  townships  had.  It  must  be 
borne  in  mind  that  the  new  counties,  under 
the  law  of  Kansas,  were  not  clothed  with  all 
the  powers  of  the  older  counties. 

The  circuit  court  of  appeals  for  this  circuit, 
in  the  case  of  Coffin  v.  Commissioners,  6  C.  C. 
A.  288,  r>7  I'-ed.  I'.M,  had  occasion  to  speak  of 
the  powers  of  the  new  counties  coming  into 


being  under  the  act  of  1886,  and  say:     "The 
proviso  [in  the  act  of  1887]  does  not,  as  counsel 
suppose,   impose  a  limitation  upon   the  exer- 
cise of  power  which  becomes  vested  in  a  new- 
ly-organized county,  as  soon  as  counnissinners 
are  appointed,  but  its  effect  is  to  prevent  such 
power  from  being  vested  until  a  year  after  its 
organization."     If  it  be   true   that  the  power  I 
does  not  vest  until  a  year  after  the  organiza-  / 
tiou,  it  follows,  as  night  follows  day.  that  there  / 
was  no  power  in  Kiowa  county  or  its  officers  I 
to  order  or  hold  an  election;    and,  if  this  be' 
ti'ue,  the  bonds  are  void. 

The  supreme  court  of  Kansas,  in  speaking 
of  the  nature  and  powers  possessed  by  coun- 
ties during  the  first  year  of  the  organization, 
say:  "Now,  it  will  be  admitted  that,  when 
the  temporary  county  officers  appointed  by 
the  governor  have  qualified  and  entered  upon 
the  discharge  of  their  duties,  the  county  is  oi-- 
ganized.  But  such  organization  is  not  a  com- 
pleted organization;  or,  at  least,  it  is  not  an 
organization  sufficient  for  all  purposes.  At 
that  time  the  county  has  no  county  attorney, 
no  clerk  of  the  district  court,  no  county  treas- 
urer, no  superintendent,  no  county  surveyor, 
and  no  probate  judge."  No  presumption  can 
be  indulged  in  favor  of  such  an  organization 
unless  it  is  given  in  plain  and  unmistakable 
language.  Having  held  that  the  proviso  in 
the  act  of  18SG,  which  attempted  to  authorize 
or  permit  KioAva  county  to  vote  for  bonds  be- 
fore it  had  been  organized  one  year,  is  ob- 
noxious to  the  constitution  of  the  state, 
where  is  the  power  to  be  found  which  au- 
thorized a  vote  and  subscription  at  the  time 
these  acts  were  performed?  It  is  urged  that 
the  general  law  authorized  counties  to  make 
such  vote  and  subscription,  and  under  that 
the  power  existed,  because  the  inhibition  in 
the  proviso  in  the  act  of  1880  only  prohibits 
the  issuing,  and  not  the  voting,  of  bonds  with- 
in the  year.  To  say  that  such  power  vested, 
to  the  extent  of  allowing  a  vote  to  be  taken, 
within  the  year,  is  to  accept  the  theory  that 
the  proviso  is  a  limitation,  which  the  circuit 
court  of  appeals  declares  is  not  true. 

It  is  urged  by  the  plaintiff  that  the  county 
is  estopped,  by  certain  recitals  in  the  bonds,, 
from  setting  up  a  defense  to  these  bonds, 
liecitals  as  to  matters  of  fact  sometimes  ope- 
rate as  an  estoppel,  in  the  case  of  innocent 
purchasers  for  value;  but  recitals  as  to  the 
existence  of  a  law  and  the  power  conferred 
by  it,  which  are  false,  cannot  create  an  es- 
toppel. The  bond  recites  that  it  was  issued 
under  a  certain  act.  and  that  the  vote  and 
subscription  was  had  under  and  in  pursuance 
thereof.  The  circuit  court  of  appi'als  have 
decided  that  that  act  did  not  go  into  effect,  as 
to  newly-organized  counties,  until  one  year 
after  their  organization.  In  Anthony  v.  Jas- 
per Co.,  101  U.  S.  097.  the  court  say:  "Deal- 
ers in  municipal  bonds  are  charged  with  no- 
tice of  the  laws  of  the  state  granting  power  to 
make  the  bonds  they  find  on  the  mai'ket." 

In  Dixon  Co.  v.  Field,  111  U.  S.  92,  4  Sup. 
Ct.  315,  the  question  of  estoppel  by  reason  of 


CAN  POWER  TO  ISSUE  BONDS  BE  IMPLIED. 


197 


I'ocitiils  in  tlio  bonds  was  under  consideration, 
and  the  court  say:  "This  does  not  extend  to 
or  cover  matters  of  law.  All  parties  are 
equally  bound  to  know  the  law,  and  a  certifi- 
cate recitinj;  the  actual  facts,  and  that  there- 
by- the  bonds  were  conformable  to  law,  when, 
judicially  speaking  thoy  are  not,  will  not 
make  them  so;  nor  can  it  work  an  estoppel 
upon  the  county  to  claim  the  protection  of  the 
law.  Otherwise,  it  would  always  be  in  the 
power  of  a  municipal  corporation  to  which 
tlie  power  was  denied  to  usurp  the  forbidden 
authority,  by  declaring  that  its  assumption 
was  within  the  law.  This  would  be  the  clear 
exercise  of  lesisk^tive  power,  and  would  sui> 
pose  such  corporate  bodies  to  be  superior  to 
the  law  itself." 

In  National  Bank  of  Commerce  v.  Town  of 
Granada.  4  C.  C.  A.  212,  54  Fed.  100,  the  cir- 
.  cuit  court  of  appeals  for  this  circuit  say:  "It 
has  never  yet  been  held  that  a  false  recital  in 
a  bond  can  make  that  a  law  which  never  was 
law." 

The  same  theory  of  estoppel  now  ui'ged  was 
insisted  on  in  Coffin  v.  Commissioners,  G  C. 
C.  A.  2S8,  57  F.^d.  137,  a  case  wherein  the 
power  of  newly-organized  counties,  under  the 
very  act  under  consideration  in  this  case,  was 
passed  npon,  and  the  court  say:  "Even  if  we 
were  able  to  concede,  according  to  the  con- 
tention of  counsel,  that  a  newly-organized 
county,  in  the  state  of  Kansas,  is  endowed 
with  the  power,  during  the  first  year  of  its 
existence,  and  by  virtue  of  the  appointment 
and  qualification  of  commissioners,  to  issue 
funding  bonds,  and  the  proviso  is  a  mere  lim- 
itation as  to  time  of  the  mode  of  exercising 
the  power,  still  we  would  not  be  able  to  con- 
cede the  further  proposition  of  counsel  that 
purchasers  of  bonds  issued  by  such  counties 
are  not  required  to  ascertain  the  age  of  the 
county,  but  may  rely  upon  the  recitals  which 
such  bonds  happen  to  contain."  And,  in  the 
concluding  portion  of  the  opinion,  this  lan- 
guage is  foimd:  "It  was  at  least  incumbent 
on  the  purchaser  of  the  bonds  to  ascertain 
that  Kearney  county  had  become  a  recog- 
nized political  subdivision  of  the  state.  That 
fact  had  to  be  ascertained  to  enable  the  bond- 
holder to  further  ascertain  if  it  had  powei', 
under  any  circumstances,  to  issue  bonds.  A 
casual  examination  of  the  record  kept  in  the 
governor's  office  would  have  disclosed  the 
fact  that  the  commissioners  were  not  ap- 
pointed until  April  3,  1888,   which  was  less 


than   four   months    previous   to   the   day    on 
which  the  bonds  bear  date." 

Both  series  of  bonds  involved  in  this  suit  on 
their  face  recite  that  they  were  issued  under 
and  in  pursuance  of  an  act  which,  it  has  been 
seen,  was  not  applicable  to  a  new  county, 
such  as  the  defendant  was,  and  in  pursuance 
of  a  vote  had  on  the  22d  of  .Tune,  ISSG.  If 
the  holders  of  these  bonds  had  examined  the  , 
record  in  the  executive  office,  they  would 
have  found  the  commissioners  were  appoint- 
ed on  the  23d  of  March,  18S6,  and  that  the  ' 
vote  for  the  issue  of  the  bonds  was  had  in 
three  months  thereafter.  If  they  had  exam- 
ined the  act  regulating  the  creation  of  new 
counties,  they  would  have  found,  as  has  the 
circuit  court  of  appeals,  that  such  counties 
did  not  become  vested  with  the  general  pow- 
ers conferred  by  the  act  recited  in  the  bonds 
until  one  year  after  their  organization,  and 
that  Kiowa  county  did  not  have  power  to 
contract  for  the  issue  of  the  bonds  in  suit. 

The  bonds  issued  to  the  Chicago,  Kansas  & 
Nebraska  Kailwaj'  Company  contain,  among 
other  things,  this  provision:    "This  is  one  of  a 
series  of  one  hundred  and  twenty  bonds,  of 
like    tenor,    date,    and   amount   [.$1,000   each], 
numbered  from  one  to  one  hundred  and  twen- 
ty, inclusive,  issued  to  the  Chicago,  Kansas  & 
Nebraska  Railway  Company."     An  examina-  • 
tion  of  the  appraisement  of  the  taxable  prop- 
erty of  Kiowa  county  would  have  shown  that 
Kiowa  county,  at  the  time  it  contracted  to  • 
issue  the  120  bonds  was  without  authority  to  | 
issue  more  than  ^111,000  of  bonds.     It  ap-  ' 
pears,  from  the  pleadings,  however,  that  the 
whole  nimiber  of  bonds  have  not  been  issued. 
If  the  views  expressed  in  this  opinion  are  cor- 
rect, it  would  serve  ro  useful  purpose  to  enter 
upon  a  discussion  of  the  subject  suggested. 
That  a  vote  to  issue  bonds,  not  taken  under  I 
the   sanct;on   of  law   authorizing   the   same,  1 
will  not  confer  power  to  issue  bonds,  is  well  1 
settled  in   George  v.  Tow'nship,  IG  Kan.  72, 
and  in  McClure  v.  Township,  94  U.  S.  429. 

In  conclusion,  it  may  be  stated  that  the  i 
power  of  the  defendant  county  to  vote,  on  the  , 
22d  of  June,  188G,  for  the  issue  of  these  bonds,  , 
is  not  free  from  doubt.     On  the  contrary,  the  , 
power  claimed  can  only  be  deduced  from  the  ' 
silence  of  the  statute  and  the  absence  of  neg- 
ative words.     The  power  to  issue  the  class  of 
bonds  in  suit  must  rest  on  a  more  firm  foun- 
dation.    Entertaining  these  views,  the  demur- 
rer is  overruled. 


198 


MUNICIPAL    SECURITIES. 


DODGE  V.   CITY  OF  MEMPHIS. 

(51  Fed.  165.) 

Circuit  Court,  E.  D.  Missouri,  N.  D.     May  24, 
1892. 

At  law.  Action  by  James  B.  Dodge  against 
the  city  of  Mempliis,  Mo.,  on  certain  munic- 
ipal l)onds.  Heard  on  demurrer  to  the  plea. 
Overruled. 

Felix  T.  Hughes,  for  plaintiff. 

The  contract  of  subscription  in  the  case  at 
bar  was  valid,  and  expressly  authorized,  and 
the  bonds  were  not  wholly  void,  but  valid,  ex- 
cept as  to  their  commercial  quality,  in  which 
case  the  contract  will  be  enforced  in  so  far  as 
it  is  valid,  and  the  provision  in  the  contract  of 
subscription  to  pay  in  bonds  will  be  held,  in 
effect,  a  contract  to  pay  in  money  at  the  time 
and  under  the  conditions  imposed  in  the  order 
of  subscription.  Gelpcke  v.  Dubuque,  1  Wall. 
222;  author's  views,  subdivision  6,  §  125,  (4th 
Ed.)  Dill.  Mun.  Corp.;  Mayor  v.  Ray,  19  Wall. 
46S;  Hitchcock  v.  Galveston,  9(3  U.  S.  350; 
Little  Rock  v.  Merchants'  Nat.  Bank,  98  U.  S. 
308:  Wall  v.  Monroe  Co.,  103  U.  S.  78;  Clai- 
borne Co.  V.  Brooks,  111  U.  S.  400,  4  Sup.  Ct. 
489;  Wells  v.  Supervisors,  102  U.  S.  625;  Nor- 
ton V.  Dyersburg,  127  U.  S.  160,  8  Sup.  Ct. 
1111;  Hill  V.  City  of  Memphis,  134  U.  S.  198, 
10  Sup.  Ct.  562;  Cause  v.  City  of  Clarksville, 
5  Dill.  177,  Fed.  Cas.  No.  5.276;  Babcock  v. 
Goodrich,  47  Cal.  488;  State  Board  v.  Citi- 
zens' St.  Ry.,  47  Ind.  407;  Allegheny  City  v. 
McClurkan,  14  Pa.  St.  81;    Maher  v.  Chicago, 

38  111.  266;  Oneida  Bank  v.  Ontario  Bank,  21 
N.  Y.  490;  Argenti  v.  City  of  San  Francisco, 
16  Cal.  256;  Bank  v.  North,  4  Johns.  Ch.  370; 
Ketcham  v.  City  of  Buffalo,  14  N.  Y.  356;  Ev- 
ansville,  etc.,  R.  Co.  v.  City  of  Evansville,  15 
Ind.  395;  Mullarky  v.  Cedar  Falls,  19  Iowa, 
21;  Sheffield  School  Tp.  v.  Andress,  56  Ind. 
162;  opinion  by  Mr.  Justice  Story  in  Bank  v. 
Patterson.  7  Cranch,  305;    Knapp  v.  Mayor, 

39  N.  J.  Law,  394. 

The  promise  to  give  bonds  in  payment  was, 
at  furthest,  only  ultra  vires,  and,  in  such  case, 
though  specific  performance  of  an  engagement 
to  do  a  thiug  transgi'essive  of  its  corporate 
power  may  not  be  enforced,  the  corporation 
can  be  held  liable  on  its  contract.  Oneida 
Bank  v.  Ontario  Bank,  21  N.  Y.  490;  Curtis  v. 
Loavitt,  15  N.  Y.  95-90.  The  latter  case  espe- 
cially decides  that,  where  the  right  to  make  the 
contract  exists,— but  the  bonds  or  security  tak- 
en are  unlawful,— the  right  to  disaffirm  the 
entire  contract,  and  sue  for  "money  had  and 
received,"  or  to  only  disaffirm  the  illegal  se- 
curity and  sue  upon  the  contract,  rests  witli  the 
holder  of  the  security,  and  not  with  the  corpo- 
ration which  gave  it. 

Tlio  contract  can  be  enforced  subject  to  the 
equities  between  the  original  parties,  if  there 
are  any.  Hackettstown  v.  Swackhamer,  37 
N.  J.  Law,  191;  Dill.  Mun.  Coip.  (4th  Ed.)  §§ 
120-12;j;  Daniel,  Neg.  Inst.  (2d  lOd.)  §  420; 
Knapp  V.  Mayor,  39  N.  J.  Law,  394. 


The  ground  has  been  broadly  taken  that, 
for  debts  and  obligations  lawfully  created,  any 
coriwration.  public  as  well  as  private,  has  the 
implied  authority,  unless  prohibited  by  stat- 
ute, charter,  or  by-law,  to  evidence  the  same 
by  the  execution  of  a  bill,  note,  or  bond,  or 
other  contract;  that  the  power  to  contract  a 
debt  carries  with  it  the  power  to  give  a  suita- 
ble acknowledgment  of  it;  and  there  is  no  rule 
of  law,  in  the  absence  of  a  statute  limiting 
the  length  of  the  credit.  Municipality  v.  Mc- 
Donough,  2  Rob.  (La.)  244  (1S42;)  Bany  v. 
Merchants'  Exeh.  Co.,  1  Sandf.  Ch.  280;  Cur- 
tis V.  Leavitt,  15  N.  Y.  9;  Smith  v.  Law,  21 
N.  Y.  299;  Bank  v.  Carpenter's  Adm'rs,  7 
Ohio,  31;  Ketcham  v.  City  of  Buffalo,  14  N. 
Y.  356;  Douglass  v.  Mayor,  etc.,  5  Nev.  147; 
City  of  Richmond  v.  McGirr,  78  Ind.  192; 
Evansville,  etc.,  R.  Co.  v.  City  of  Evansville, 
15  Ind.  395;  Sheffield  School  Tp.  v.  Andress,  56 
Ind.  162;  Dill.  Mun.  Coiid.  (4th  Ed.)  443;  2 
Kent,  Comm.  224;  Beach,  Ry.  Law,  §  223; 
Green's  Brice,  Ultra  Vires,  p.  122;  Chicago,  B. 
&  Q.  R.  Co.  V.  City  of  Aurora,  99  111.  211. 

Henry  A.  Cunningham,  for  defendant. 

THAYER,  District  Judge.  The  petition 
contains  three  coimts.  Tlie  first  count  alleges 
that  in  February,  1871,  the  town  of  Memphis, 
Scotland  county.  Mo.,  subscribed  for  .$30,000 
of  the  capital  stock  of  the  Missouri,  Iowa  & 
Nebraska  Railway  Company,  pursuant  to  pow-  • 
er  conferred  by  an  act  of  the  general  assem- 
bly of  Missouri,  approved  February  9,  1857, 
to  incorporate  the  Alexandria  &  Bloomfield 
Railroad  Company;  that  such  sub.scription  was 
authoi'ized  by  a  majority  vote  of  the  people  of 
the  town  of  Memphis,  at  an  election  held  for 
that  purix)se;  that  as  an  evidence  of  such  sub- 
scription coupon  bonds  to  the  amount  of  ?30,- 
000  were  issued  and  delivered  by  the  town, 
which  were  to  run  for  20  years,  and  which 
matured  on  March  1,  1S91.  It  is  further  avei'- 
red  that  the  town  of  JNIemphis  received  the 
stock  in  question,  but  subsequently  sold  it, 
and  that  for  some  yeare  it  paid  the  interest 
on  its  bonds;  that  it  also  appointed  an  agen/t 
to  represent  the  town  at  meetings  of  the  stock- 
holders of  the  railway  company.  The  peti- 
tion then  sets  out  one  of  the  bonds  in  hnec 
verba,  which  appears  to  be  a  negotiable  bond, 
in  the  ordinary  form,  such  as  are  usually  is- 
sued by  municipal  coi-porations;  and  avers 
that  the  plaintiff  is  the  holder  of  22  of  such 
bonds,  (giving  their  numbers,)  and  demands 
judgment  for  the  amount  due  on  the  subscrip- 
tion as  shown  by  the  bonds,  together  with  in- 
terest from  March  1,  1891.  The  theory  of  the 
plaintiff's  counsel  seems  to  be  that  the  first 
count  of  the  petition  is  a  suit  on  the  bonds, 
treating  them  as  nonnegotiable  instruments; 
that  the  bond  evidences  the  contract  of  sub- 
scription; and  that  the  plaintiff  is  entitled  to 
sue  on  the  same,  ignoring  their  negotiable 
quality  precisely  as  if  they  were  an  ordinary 
nonnegotiable  contract,  which  the  town  was 
authorized  to  make  and  had  made.     That  the 


THERE  MUST  BE  EXPRESS  POWER. 


199 


town  of  Memphis  hail  uo  authority  to  issue 
negotiable  bonds  in  payment  for  the  stock 
subscription  is  conceded.  Hill  v.  Alemphis, 
134  U.  S.  198,  10  Sup.  Ct.  562.  To  the  first 
count  of  the  petition  the  defendant  interix>ses 
several  different  pleas,  including  a  plea  of  the 
statute  of  limitations,  and  to  the  latter  plea 
plaintiff  demurs. 

I  It  may  be  conceded  that  if  the  first  count  of 
the  petition  is  proi>erly  founded  on  the  bonds, 
calling  them  either  bonds  or  the  contract  of 
subscription,  then  the  statute  of  limitations  is 
not  well  pleaded,  because  such  bonds  did  not 
mature  until  March  1,  1S91.  and  neither  the 
5,  10,  nor  20  years'  bar  of  the  statute  is  ap- 
plicable. But,  on  the  other  hand,  if  a  suit 
cannot  be  maintained  on  the  bonds  according 
to  plaintiff's  contention,  then  the  first  count 
of  his  declaration  is  bad,  and  the  demurrer  to 
the  plea  is  not  tenable  for  that  reason.  I  have 
looked  through  all  of  the  federal  cases  cited 
by  plaintiff's  attorney  in  support  of  his  con- 
tention that  where  negotiable  bonds  are  issued 
by  a  municipal  corporation  without  authority 
of  law,  and  are  void  as  negotiable  instruments, 
a  suit  may  nevertheless  be  maintained  on  sucli 
bonds,  under  some  circumstances,  as  nonnego- 
tiable  instrimaents,  and  I  have  been  unable  to 
find  a  single  paragraph  in  any  of  the  decisions 
that  fairly  supports  such  a  doctrine.  The  au- 
thorities show  that,  if  negotiable  paper  is  ut- 
tered by  a  municipal  corporation  without  au- 
thority of  law,  it  is  void,  and  a  suit  cannot  be 
maintained  thereon  for  any  purpose.  Mayor 
V.  Ray,  19  Wall.  4GS;  Hitchcock  v.  Galveston, 
96  U.  S.  350;  Little  Rock  v.  Merchants'  Nat. 
Bank,  98  U.  S.  308;    Wall  v.  Monroe  Co.,  103 


U.  S.  78;  Hill  v.  City  of  Memphis,  134  U.  S. 
198,  10  Sup.  Ct.  562;  Merrill  v.  Monticello, 
138  U.  S.  673,  11  Sup.  Ct.  441. 

They  show,  no  doubt,  that  when  a  munic- 
ipal corporation  sells  bonds  which  are  void, 
and  receives  the  money,  it  may  be  compelled 
to  restore  it  in  an  action  for  money  had  and 
received.  So  when  a  mimicipal  corporation  is 
authorized  to  purchase  property  for  any  pur- 
pose, or  to  contract  for  the  erection  of  public 
buildings  or  for  any  other  public  work,  and  it 
enters  into  such  authorized  contract,  but  pays 
for  the  property  acquired  or  work  done  in  ne- 
gotiable securities  which  it  has  no  express  or 
implied  power  to  issue,  it  may  be  compelled  to 
pay  for  that  which  it  has  received  in  a  suit 
brought  for  that  puipose.  In  no  case,  how- 
ever, does  it  appear  that  a  suit  has  been  sus- 
tained on  a  void  bond,  treating  it  as  nonnego- 
tiable,  and  as  something  entirely  different  from 
what  the  parties  intended  it  should  be.  As 
the  court  understands  the  cases,  suit  must  b'e 
brought  on  the  implied  promise  which  the 
law  raises  to  pay  the  value  of  that  which  the 
municipality  has  received,  but  has  in  fact  not 
paid  for,  because  the  securities  issued  in  pre- 
tended payment  were  void.  The  demurrer  to 
the  plea  must  accordingly  be  overruled,  because 
the  first  count  is  bad  if  it  is  regarded  as  stat- 
ing a  cause  of  action  on  the  bonds.  If  it  is 
treated  as  a  suit  to  recover  the  value  of  cer- 
tain stock  which  the  town  lawfully  subscribed 
and  acquired,  and  has  not  paid  for,  then  the 
plea  of  the  statute  may  be  a  good  plea.  At 
all  events,  it  does  not  affirmatively  appear 
that  the  plea  in  that  event  is  untenable. 

The  demurrer  is  overruled. 


200 


MUNICIPAL    SECURITIES. 


OITY   OF   EVANSVILLE   v.   DENNETT. 

(16  Sup.  Ct.  613,  161  U.  S.  434.) 

Supreme  Court  of  United  States.     March  2, 
1S96. 

No.  509. 

On  a  Certificate  from  the  United  States  Cir- 
cuit Court  of  Appeals,  Seventh  Circuit. 

Action  by  William  S.  Dennett  against  the 
city  of  Evansville  on  certain  bonds  issued  by 
the  city.  There  was  a  judgment  for  plaintiff, 
and  defendant  brought  error  to  the  circuit 
court  of  appeals,  which  certified  certain  ques- 
tions to  the  supreme  court. 

Geo.  A.  Cunningham,  for  plaintiff'  in  er- 
ror. George  A.  Sanders  and  A.  W.  Hatch, 
for  defendant  in  error. 

Mr.  .Justice  HARLAN  delivered  the  opin- 
ion of  the  court. 

This  case  is  here  upon  a  certificate  by  the 
judges  of  the  United  States  circuit  court  of 
appeals  for  the  Seventh  circuit. 

It  appears  from  the  statement  of  facts  ac- 
companying the  questions  propounded  to  this 
court  that  on  May  1,  1868,  the  city  of  Evans- 
ville issued  its  bonds,  bearing  date  on  that 
day,  to  the  amount  in  the  aggregate  of  $300,- 
000,  in  payment  of  its  subscription  to  the 
stock  of  the  Evansville,  Henderson  &  Nash- 
ville Railroad  Company. 

Each  bond  was  for  the  smn  of  $1,000,  was 
made  payable  to  the  bearer  30  years  after  date, 
with  interest  on  presentation  of  the  coupons 
attached,  and  was  of  the  tenor  and  effect  fol- 
lowing: 

"$1,000.00  No. . 

"United  States  of  America. 
"City  of  Evansville,  State  of  Indiana. 

"On  account  of  stock  subscription  on  the 
Evansville,  Henderson  and  Nashville  Railroad 
Company. 

"The  city  of  Evansville,  in  the  state  of  In- 
diana, promises  to  pay  to  the  bearer,  thirty 
(30)  year«  after  date,  the  sum  of  one  thousand 
dollars,  at  the  office  of  the  Farmers'  Loan  and 
Trust  Company,  of  New  York,  with  interest 
thereon  at  the  rate  of  seven  per  centum  per 
annum,  payable  semiannually  at  the  office  of 
the  Farmers'  Loan  and  Trust  Company,  in  the 
city  of  New  York,  on  the  first  day  of  Novem- 
ber and  the  first  day  of  May  of  each  year,  on 
presentation  and  delivery  of  the  interest  cou- 
pons hereto  attached.  This  lx>ing  one  of  a 
series  of  three  hundred  bonds  of  like  tenor 
and  date  issued  by  the  city  of  Evansville,  in 
payment  of  a  subscription  to  the  Evansville, 
Henderson  and  Nashville  Railroad  Company, 
made  in  pursuance  of  an  act  of  the  legisla- 
ture of  the  state  of  Indiana  and  ordinances  of 
the  city  council  of  said  city,  passed  in  pur- 
suance thereof.  The  city  of  Evansville  here- 
by waives  aU  benefit  from  valuation  or  ap- 
praisement laws. 

"In  testimony  whereof,  the  said  city  of 
EJvansviUe  has  hereunto  caused  to  be  set  its 
corporate  seal,  and  these  presents  to  be  sign- 


I  ed  by  the  mayor  of  said  city,  and  countersign- 
ed by  the  clerk  thereof. 
"Dated  the  1st  of  May,  1868. 

"William  H.  Walker,  Mayor. 
"A.  M.  McGriff,  City  Clerk." 

On  December  1,  1870,  the  city  also  issued 
bonds,  amounting  in  the  aggregate  to  $300,000, 
in  payment  of  its  subscription  to  the  stock  of 
I  the   Evansville,    Carmi   &  Paducah   Railroad 
'  Company,  each  bond  being  dated  December 
'  1,  1S70,  for  the  sum  of  $1.0ou,  payable  to  the 
Evansville,  Carmi  <&  Paducah  Railroad  Com- 
pany or  bearer,  December  1,  1895,  with  inter- 
est on  presentation  of  the  coupons  attached. 
Each  of  those  bonds   was  in   the   following 
I  form: 

i      "Total   amount   authorized,   three   hundred 
thousand  dollars. 


'No. 


$1,000.00. 


"City  of  Evansville,  State  of  Indiana. 
"Evansville,  Carmi  and  Paducah  Railroad 
Company. 
"By  virtue  of  an  act  of  the  general  assem- 
bly of  the  state  of  Indiana,  entitled  'An  act 
granting  to  the  citizens  of  the  town  of  Evans- 
ville, in  the  county  of  Vanderburg,  a  city 
charter,'  approved  January  27th,  1847;  and 
by  virtue  of  an  act  of  the  general  assembly 
of  the  state  of  Indiana,  amendatory  of  said  act, 
approved  March  11th,  1867,  conferring  upon 
the  city  council  of  said  city  power  to  take 
stock  in  any  companj'  authorized  for  the  pur- 
pose of  making  a  road  of  any  kind  leading  to 
said  city;  and  by  virtue  of  the  resolution  of 
said  city  council  of  said  city,  passed  October 
4,  1869,  ordering  an  election  of  the  qualified 
voters  of  said  city  upon  the  question  of  sub- 
scribing three  hundred  thousand  dollars  to 
the  capital  stock  of  the  Evansville,  Carmi  and 
Paducah  Railroad  Company,  and  said  elec- 
tion, held  on  the  13th  day  of  November,  1868, 
resulting  in  a  legal  majority  in  favor  of  such 
subscription;  and  by  virtue  of  a  resolution  of 
said  city  council  passed  May  23,  1870,  order- 
ing an  issue  of  the  bonds  of  the  city  of  Evans- 
ville (of  which  this  is  a  part)  to  an  amount 
not  to  exceed  three  hundred  thousand  dol- 
lars, bearing  interest  at  the  rate  of  7  per  cent, 
per  annum,  for  the  purpose  of  paying  the  sub- 
scription as  authorized  above.  The  said  city 
of  Evansville  hereby  j.  -knowledges  to  owe 
and  promises  to  pay  to  the  Evansville,  Carmi 
and  I'aducah  Railroad  Company,  or  bearer, 
one  thousand  dofiars,  without  relief  from 
valuation  or  appraisement  laws,  payable  on 
the  1st  day  of  December,  A.  D.  1895,  at  the 
Farmers'  Loan  and  Trust  Company,  in  the 
city  of  New  York,  with  interest  from  the  date 
thereof,  at  the  rate  of  7  per  cent,  per  annum, 
said  interest  payable  semiannually  on  the  first 
day  of  .Tune  and  the  first  day  of  Deceml^er, 
on  pi'esentation  of  the  proper  coupons  for 
the  same  at  said  bank.  The  faith  and  credit 
and  real  estate  revenues  and  all  other  re- 
sources of  the  said  city  of  Evansville  are 
hereby  solemnly  and  irrevocably  pledged  for 


ESTOPPEL  BY  COURSE  OF  DEALING  OE  RECITALS  IX  BOXDS. 


201 


tho  payuieut  of  the  principal  and  interest  of  ' 
this  bond. 

"In  testimony  whereof,  the  mayor  of  the 
city  of  EvaiiSN  ille  has  hereunto  set  his  hand, 
and  affixed  the  corporate  seal  of  the  said  city, 
and  the  city  clerk  of  said  city  has  counter- 
sij^ned  these  presents,  this  1st  day  of  Decem- 
ber, 1S70.  \Vm.  Baker,  Mayor.       > 

"Wm.  Ilelder,  City  Clerk."  j 

The  charter  of  Evansville,  approved  Jan- 
uary 27,  1847,  in  the  fortieth  clause  of  sec- 
tion 30  thereof,  save  the  city  power  "to  take 
strok  in  any  chartered  company  for  making 
roads  to  said  city,  or  for  waterin:?  said  city. 
and  In  any  company  authorized  or  empow- 
ered by  the  commissioners  of  Yanderburg 
county  to  build  a  bridge  on  any  read  leading 
to  said  city;  and  to  establish,  maintain  and 
regulate  ferries  across  tlie  Oliio  river  from 
the  public  wharves  of  said  city:  provided, 
that  no  stock  shall  be  subscribed  or  taken 
by  the  common  council  in  any  such  company, 
unless  it  be  on  the  petition  of  two-thirds  of 
the  residents  of  said  city,  who  are  fieehold- 
ers  of  the  city,  distinctly  setting  forth  the 
company  in  which  stock  is  to  be  taken,  and 
the  number  and  amount  of  shares  to  be  sub 
scribed:  and  provided,  also,  that  in  all  cases 
where  such  stock  is  taken  the  common  coun- 
cil shall  have  power  to  borrow  money  and 
levy  and  collect  taxes  on  all  real  estate  (ei- 
ther inclusive  or  exclusive  of  improvements, 
at  their  discretion)  for  the  payment  of  said 
stock."    Laws  Ind.  (Local)  lS4t>-47,  p.  14,  c.  1. 

This  clause  of  the  original  charter  of  Ev- 
ansville was,  in  form,  amended  by  the  act 
of  the  legislature  of  the  state  of  Indiana, 
approved  December  21,  1SG5,  entitled  "An 
act  to  amend  the  fortieth  clause  of  section  30  ! 
of  an  act  ez-titled  "An  act  granting  to  the  j 
citizens  of  the  town  of  Evansville,  in  the 
county  of  Yanderburg,  a  city  charter,'  ap- 
proved .January  27th,  18-17,  and  declaratory  of 
the  meaning  of  the  second  section  of  the 
same  act."  Laws  Ind.  (Called  Sess.)  1865, 
pp.  76,  S3. 

The  certificate  before  us  states  that,  "un- 
der the  decisions  of  the  supreme  court  of 
Indiana,  this  act  was  repugnant  to  the  con- 
stitution, and  invalid,  in  that  it  did  not  set 
out  the  entire  section  as  amended." 

In  1S67  the  legislature  of  Indiana  attempt- 
ed to  amend  the  act  of  186.5.  above  referred 
to,  by  an  act  approved  March  11,  1867,  enti- 
tled "An  act  to  amend  the  first  section  of  an 
act  entitled  An  act  to  amend  the  fortieth  [ 
clause  of  section  thirty  of  an  act  entitled  "An  | 
act  granting  to  the  citizens  of  the  town  of 
Evansville,  in  the  county  of  Yanderburg,  a 
city  charter,"  approved  .Tanuary  27th,  1847, 
and  declaratory  of  the  meaning  of  the  second 
section  of  the  same.'  approved  December  21st, 
1865,  so  as  to  authorize  the  common  coun- 
cil of  the  city  of  Evansville  to  subscribe  for 
and  take  stock  in  the  Evansville,  Henderson 
and  Nashville  Railroad  Company,  or  any  oth- 
er company,  or  corporation,  organized  under 


and  by  virtue  of  the  laws  of  the  common- 
wealth of  Kentucky,  for  the  purpose  of  con- 
structing a  railroad  leading  from  Nashville, 
in  the  state  of  Tennessee,  to  a  point  on  the 
Ohio  river  at  or  near  Evansville,  Indiana." 
Laws  Ind.  1867,  p.  121,  c.  'y2. 

This  act  authorized  subsciiptions  for  sto<'k 
in  the  Evansville,  Henderson  &  Nashville 
Railroad  Company,  or  other  railroad  compa- 
nies, by  the  city  of  Evansville,  when  a 
majority  of  the  ciualilied  voters  of  the  city, 
who  were  also  taxpayers,  should  vote  there- 
for. 

It  is  certified  to  us  that,  under  the  decision 
of  the  supreme  court  of  the  state  of  Indiana, 
this  latter  act  was  invalid,  because  amenda- 
tory of  a  prior  invalid  act. 

The  bonds  in  question,  of  both  series,  were 
in  fact  issued  in  attempted  compliance  with 
the  act  of  March  11,  1867,  referred  to  in  the 
recitals  in  the  bonds  issued  to  the  Evans- 
ville, Carmi  &  Paducah  Railroad  Company. 

The  ordinances  of  the  citj'  council  of  the 
city  of  Evansville  authorizing  the  issue  of 
both  series  of  bonds  disclose  that  they  were 
issued  pursuant  to  an  election  by  the  legal 
votei-s  of  the  city  of  Evansville.  but  do  not 
recite  that  any  petition  of  resident  freehold- 
ers of  the  city  was  presented  to  the  common 
council,  as  required  by  the  charter;  and  no 
such  petition  was,  in  fact,  in  either  case, 
made  or  presented  to  the  common  council  of 
the  city  of  Evansville 

The  defendant  in  error,  William  S.  Den- 
nett, purchased  bonds  of  both  issues,  before 
maturity  and  for  value,  and  is  a  bona  fide 
holder  thereof. 

This  suit  is  brought  upon  matured  coupons 
of  both  series  of  bonds. 

The  questions  propounded  are  these: 

(1)  Does  the  recital  in  the  series  of  bonds 
issued  in  payment  of  subscription  to  the 
Evansville,  Henderson  &  Nashville  Railroad 
Company,  that  they  were  issued  "in  pur- 
suance of  an  act  of  the  legislature  ot  the 
state  of  Indiana  and  ordinances  of  the  city 
council  of  said  city,  passed  in  pursuance 
thereof,"  put  a  purchaser  upon  inquiry  as 
to  the  terms  of  the  ordinances  under  which 
the  bonds  were  issued? 

(2)  Does  the  recital  in  ihe  series  of  bonds 
issued  to  the  Evansville,  Carm'  &  Paducah 
Itailroad  Company,  that  they  were  issued 
"by  virtue  of  a  resolution  of  said  city  council 
passed  May  23,  1870."  put  a  purchaser  upon 
in(iuiry  as  to  the  terms  of  tlat  resolution, 
and  charge  him  with  knowledge  of  its  terms? 

(3)  Do  the  recitals  in  the  bonds  issued  to 
the  Evansville.  Ca-mi  &  Paducah  Railroad 
Company,  as  agains-  a  bona  fide  purchaser 
for  value  of  such  bonds,  estop  the  city  of 
Evansville  from  asserting  that  such  bonds 
were  not  issued,  for  stock  subscribed,  upon 
a  petition  of  two-thirds  of  the  resident  free- 
holdei-s  of  the  city,  distinctly  setting  forth 
the  company  in  which  stock  was  to  be  taken, 
and  the  number  and  amount  of  shares  to  be 
subscribed  ? 


202 


MUNICIPAL    SECURITIES. 


(4)  Under  the  recitals  in  the  bonds  issued 
to  the  Evansville,  Carmi  &  Paducah  Railroad 
Company,  was  a  bona  fide  purchaser  for 
value  put  upon  inquiry  to  ascertain  whether 
a  proper  petition  of  two-thirds  of  the  resi- 
dents of  Evansville,  freeholders  of  that  city, 
had  been  presented  to  the  common  council, 
before  that  body  had  subscribed  for  stock  in 
the  said  railroad  company? 

(5)  Was  a  bona  fide  purchaser  for  value  of 
the  bonds  issued  to  the  Evansville,  Carmi  & 
Paducah  Railroad  Company  charged  by  the 
recitals  in  said  bonds  with  notice  that  they 
were  issued  in  pursuance  of  an  invalid  act, 
and  in  pursuance  of  an  election  under  it,  or 
had  such  a  purchaser  a  right  to  assume, 
from  the  recital,  that  the  prerequisites  of 
both  the  valid  act  and  the  invalid  act  had 
been  observed  by  the  common  council  before 
the  issuance  of  such  bonds? 

Such  is  the  case  made  by  the  statement  of 
facts.  By  that  statement  we  are  informed 
that  the  act  of  the  legislature  of  Indiana 
of  December  21,  1865,  purporting  to  amend 
the  fortieth  clause  of  section  30  of  the  char- 
ter of  Evansville  granted  in  1847,  as  well  as 
the  act  of  March  11,  1867,  amendatory  of  the 
above  act  of  December  21,  18G5,  was  adjudg- 
ed by  the  supreme  court  of  Indiana  to  be  un- 
constitutional and  invalid;  and,  upon  that 
basis,  this  court  is  asked  to  answer  the  ques- 
tions embodied  in  the  certificate  from  the 
judges  of  the  circuit  court  of  appeals. 

Under  this  presentation  of  the  case,  we 
put  aside  the  acts  of  18*35  and  1867,  as  giv- 
ing no  support  to  the  rights  of  the  plaintifC, 
and  look  alone  to  the  charter  of  1847. 

It  cannot  be  doubted  that  the  power  given 
by  the  charter  of  1847,  "to  take  stock  in  any 
chartered  company  for  making  roads  to  said 
city,"  authorized  the  city  to  subscribe  to  the 
capital  stock  of  the  EvansviUe,  Henderson 
&  Nashville  Railroad  Company,  as  well  as 
of  the  Evansville,  Carmi  &  Paducah  Rail- 
road Company.  In  City  of  Aurora  v.  West, 
9  Ind.  74,  85,  one  of  the  questions  was 
whether  the  authority  given  to  the  city  coun- 
cil of  Aurora,  in  the  state  of  Indiana,  "to 
take  stock  in  any  chartered  company  for 
making  roads  to  said  city,"  was  authority 
to  subscribe  to  the  stock  of  a  railroad  com- 
pany. The  supreme  court  of  Indiana  said: 
"Here  the  power  is  expressly  granted,  and 
the  question  is  merely  whether  the  road  in 
which  the  stock  was  subscribed  is  one  con- 
templated by  the  charter.  We  think,  also, 
that  a  company  chartered  to  build  a  railroad 
is  chartered  to  build  a  road.  We  think  a 
railroad  is  a  road  as  properly  as  a  turaplke 
road  or  a  plank  road  is  a  road;  and  one  of 
these  kinds  was  contemplated  by  the  char- 
ter, and  not  common  public  highways,  as 
the  latter  are  not  constructed  by  chartered 
companies,  while  the  former  are,  and  the 
Btock  is  to  be  taken  by  the  city  in  a  cliar- 
tered  company.  A  railroad  would  accommo- 
date the  people  of  the  city  more  tlian  a  plank 
or  a  turnpike  road,  and  the  stock  would  be 
of  more  value." 


It  is  true  that  the  city  charter  provided 
that  "no  stock  shall  be  subscribed  or  taken 
by  the  common  council  in  such  company, 
unless  it  be  on  the  petition  of  two-thirds  of 
the  residents  of  said  city,  who  are  freehold- 
ers of  the  city,  distinctly  setting  forth  the 
company  in  which  stock  is  to  be  taken,  and 
the  number  and  amount  of  shares  to  be  sub- 
scribed." But  these  were  only  conditions 
which  the  statute  required  to  be  performed 
or  met  before  the  power  given  was  exercised. 
That  there  was  legislative  authority  to  sub- 
scribe to  the  stock  of  these  companies  can- 
not be  questioned,  although  the  statute  de- 
clared that  the  power  should  not  be  exercis- 
ed except  under  the  circumstances  stated  in 
the  statute. 

Was  a  bona  fide  purchaser  of  bonds  issued  , 
in  payment  of  a  subscription  of  stock — the 
power    to    subscribe    being    clearly    given—  ( 
I   bound  to  know  that  the  conditions  precedent  ' 
to  the  exercise  of  the  power  were  not  per-  : 
I   formed?     If   the   bonds   had   not   contained  | 
any    recitals    importing    a    performance    of  ' 
such    conditions    before   the   power   to    sub-  '■ 
'  scribe   was   exercised,    then   it   would   have  i 
I   been    open   to   the   city    to    show,    even   as 
i  against  a  bona  fide  purchaser,  that  the  bonds 
I   were  issued  in  disregard  of  the  statute,  and  ' 
therefore  did  not   impose  any  legal  obliga- 
tion  upon   it.     Buchanan   v.    Litchfield,    102' 
U.  S.  278;    School  Dist.  v.  Stone,  106  U.  S. 
183,  187,  1  Sup.  Ct.  84. 
i      But  the  bonds  issued   on  account  of   sub- 
\   scription  to  the  stock  of  the  Evansville,  Hen- 
derson &  Nashville  Railroad  Company  recite 
that  the  subscription  was  "made  in  pursu- 
ance of  an  act  of  the  legislature  and  ordi- 
nances of  the  city  council  passed  in  pursu- 
ance thereof."     This  imports  not  only  com- 
pliance with  the  act  of  the  legislature,  but 
that  the  ordinances  of  the  city  council  were 
in  conformity  with  the  statute.     It  is  as  if 
I   the  city  had  declared,  in  terms,  that  all  had 
been  done  that  was  required  to  be  done  in 
order  that  the  power  given  might  be  exer- 
cised. 
I      The  bonds  issued  to  the  Evansville,  Carmi 
&    Paducah    Railroad    Company    recite    that 
they  were  issued  "by  virtue  of"  the   city's 
charter  of  January  27,  1847,  and  that  recital 
imports   compliance   with   the   provisions  of 
the    charter.     The    additional    recitals    tha;, 
the  bonds  were  issued  by  virtue  of  the  act 
of  March  11,  1867,  as  well  as  by  virtue  of  a 
resolution  of  the   city  council,   ordering  an 
election  of  the  qualilied  voters  of  the   city, 
which  resulted  in  a  legal  majority  in  favor 
of  such  subscription,  and  of  a  resolution  or- 
dering the  issuiug  of  bonds,  did  not,  as  be- 
tween the  city  and  a  bona  fide  purchaser  foi 
value,  prevent  tlie  latter  from  assuming  the 
truth  of  the  recital  that  the  bonds  were  is- 
sued   by    virtue   of— that    is,    in   compliance 
with  -the  city's  charter. 

In  School  Dist.  v.  Stone,  above  cited,  the 
court  said:  "Numerous  cases  have  been  de- 
termined in  this  court,  in  which  we  have 
said  that  where  a  statute  confers  power  upon 


ESTOPPEL  BY  COURSE  OF  DEALING  OR  RECITALS  IN  BONDS. 


203 


a  municipal  conx) ration,  upon  the  perform- 
ance of  certain  precedent  conditions,  to  exe- 
cute bonds  in  aid  of  the  construction  of  a 
raih-oad,  or  for  other  lili;e  purposes,  and  im- 
poses upon  certain  officers  (invested  with 
authority  to  determine  whether  such  con- 
ditions have  been  performed)  the  responsi- 
bility of  issuing  them  when  such  conditions 
have  been  complied  with,  recitals  by  such 
offic(M-s  that  the  bonds  have  been  issued 
'in  pursuance  of,'  or  'in  conformity  with,' 
or  'by  virtue  of,'  or  'by  authority  of,'  the 
statute,  have  been  held  in  favor  of  boua  fide 
purchasers  for  value  to  import  full  compli- 
ance with  the  statute,  and  to  preclude  in- 
quiry as  to  whether  the  precedent  conditions 
had  been  performed  before  the  bonds  were 
issued."  Town  of  Coloma  v.  Eaves,  92  U. 
S.  484;  Commissioners  v.  BoUes,  94  U.  S.  104; 
Mercer  Co.  v.  Ilacket,  1  Wall.  S3;  Commis- 
sioners V.  Beal,  113  U.  S.  227,  23S,  239,  5  Sup. 
Ct.  433,  and  authorities  there  cited;  Cairo  v. 
Zane,  149  U.  S.  122,  13  Sup.  Ct.  803. 

Tlie  charter  of  the  city  of  Evausville  gave 
authority  to  subscribe  to  the  stock  of  these 
railroad  coi-porations,  and,  as  held  by  the  su- 
preme court  of  Indiana,  in  Railroad  Co.  v. 
Evansville,  15  Ind.  395,  412,  the  express  pow- 
er given  to  borrow  money  necfe^sarily  implied 
"the  power  to  determine  the  time  of  pay- 
ment, and  also  the  power  to  issue  bonds  or 
other  evidences  of  indebtedness." 

As,  therefore,  the  recitals  in  the  bonds  im- 
port compliance  with  the  city's  charter,  pur- 
chasers for  value,  having  no  notice  of  the 
nonperformance  of  the  conditions  precedent, 
were  not  bound  to  go  behind  the  statute  con- 
ferring the  power  to  subscribe,  and  to  ascer- 
tain, by  an  examination  of  the  ordinances 
and  records  of  the  city  council,  whether 
those  conditions  had,  in  fact,  been  perfonn- 
ed.  With  such  recitals  before  them,  they 
had  the  right  to  assume  that  the  circumstan- 
ces existed  which  authorized  the  city  to  exer- 
cise the  authority  given  by  the  legislature. 
The  charter  of  1847  contemplated  a  petition 
of  two-thirds  of  the  resident  freeholders  of 
the  city.  The  act  of  18G7  provided  for  an 
election  by  the  qualified  voters,  who  were  also 
taxpayers.  Notwithstanding  the  provisions 
of  the  charter  of  1847,  the  city  council,  before 
subscribing  for  the  stock,  might  well  have 
ascertained  what  were  the  wishes  of  taxpay- 
ers, who  were  also  qualified  voters.  So  far 
as  the  recitals  in  the  bonds  are  concerned, 
the  purchaser  of  bonds  might  properly  have 
assumed  that  both  methods  were  pursued. 
Although,  in  strict  law,  he  was  chargeable 
with  knowledge  that  the  act  of  18G7  was  in- 
valid, and,  consequently,  that  an  election 
held  under  it  could  not  itself  authorize  a  sub- 
scription of  stock  by  the  city,  he  was  enti- 
tled to  stand  upon  the  validity  of  the  city 
charter,  and  to  act  upon  the  assurance,  given 
by  the  recitals  in  the  bonds,  that  the  provi- 
sions of  that  charter  had  been  resiwcted, 
and,  therefore,  that  the  subscription  of  stock 
had  been  preceded  by  a  petition  to  the  city 


council  of  two-thirds  of  the  resident  freehold- , 
ers  of  the  city.  ' 

The  present  case  comes  directly  withid 
Van  Hostrup  v.  Madison  City,  1  Wall.  291, 
297. 

The  city  of  Madison,  Ind.,  was  authorized 
by  its  charter  "to  take  stock  in  any  char- 
tered company  for  making  a  road  or  roads 
to  the  said  city,  ♦  *  ♦  provided,  that  no 
stock  shall  be  subscribed  •  *  *  unless  it 
be  on  petition  of  two-thirds  of  the  citizens 
who  are  freeholders,"  etc.  Mr.  Justice  Nel- 
son, delivering  the  unanimous  judgment  of 
this  court,  said:  "It  is  supfKJsed  that  the  au- 
thority to  subscribe  is  tied  down  to  a  char- 
tered road,  the  line  of  which  comes  within 
the  limits  of  the  city;  and  that  the  words 
are  to  be  taken  in  the  most  liberal  and  re- 
strictive sense.  But  this,  we  think,  would 
be  not  only  a  very  narrow  and  strained  con- 
struction of  the  terms  of  the  clause,  but 
would  defeat  the  manifest  object  and  pur- 
pose of  it.  The  power  was  sought  and  grant- 
ed, with  the  obvious  idea  of  enabling  the  city 
to  promote  its  commercial  and  business  in- 
terests, by  affording  a  ready  and  convenient 
access  to  it  from  different  parts  of  the  inte- 
rior of  the  state,  and  thus  to  compete  with 
other  cities  on  the  Ohio  river  and  in  the  inte- 
rior which  were  or  might  be  in  the  enjoy- 
ment of  railroad  facilities."  Touching  an- 
other issue  in  that  case  (and  a  similar  issue 
is  presented  in  the  present  litigation),  the 
court  said:  "Another  objection  taken  is  that 
the  proviso  requiring  a  petition  of  two-thirds 
of  the  citizens,  who  were  freeholders  of  the 
city,  was  not  complied  with.  As  we  have 
seen,  the  bonds  signed  by  the  mayor  and 
clerk  of  the  city  recite  on  the  face  of  them 
that  they  were  issued  by  virtue  of  an  ordi- 
nance of  the  common  council  of  the  city, 
passed  September  2,  1852.  This  concludes 
the  city  as  to  any  irregularities  that  may 
have  existed  in  carrying  into  execution  the 
power  granted  to  subscribe  the  stock  and 
issue  the  bonds,  as  has  been  repeatedly  held 
by  this  court.  Our  conclusion  upon  the 
whole  case  is  that  full  power  existed  in  the 
defendants  to  issue  the  bonds,  and  that  the 
plaintiffs  are  entitled  to  recover  the  interest 
coupons  in  question.  Even  if  the  case  had 
been  doubtful,  inasmuch  as  the  city  authori- 
ties have  given  this  construction  to  the  char- 
ter, and  bonds  have  been  issued  and  are  in 
the  hands  of  bona  fide  purchasers  for  value, 
we  should  have  felt  bound  to  acquiesce  in  it,"^ 

The  case  befoi'o  us  cannot  be  distinguished 
from  the  one  just  cited. 

It  may  be  added  that  the  questions  here 
preseutotl  were  carefully  examined  by  Judge 
Woods  in  the  case  of  Moulton  v.  City  of 
Evansville,  25  Fed.  382,  3SS.  where  will  be 
found  a  full  review  of  the  adjudged  cases. 
That  was  an  action  to  recover  the  amount  of 
coupons  of  bonds  of  the  same  class  as  those 
here  involved.  The  conclusion  there  reached 
was  that  the  purchaser  of  the  bonds  had  a 
right  to  rely  on  the  recital  as  showing  that 


204 


MUNICIPAL    SECURITIES. 


a  proper  petition  of  freeholders  was  present- 
ed to  the  council  before  the  subscription  was 
ordered.  The  court  said:  "The  purchaser,  it 
is  clear,  was  bound  to  linow  that  the  act  of 
1S67,  and  the  election  ordered  and  held  in 
compliance  with  it,  were  void,  and  that  the 
law  of  1847  required  a  petition  of  freeholders 
as  a  condition  precedent  to  the  right  of  the 
common  council  to  malie  such  stock  subscrip- 
tions; but  while  bound,  by  legal  construction, 
to  linow  these  things  for  himself,  he,  for  the 
same  reason,  had  a  right  to  presume  that  the 
common  council  and  oflicials  of  the  city  who 
ordered  and  made  the  bonds  had  the  same 
knowledge;  that  they  ordered  and  held  the 
election  as  matter  of  precaution  merely,  and 
without  the  omission  of  any  requirement  of 
the  act  of  1847,  as  they  must  have  intended 
to  certify,  if  they  acted  honestly,  as  they  are 
presumed  to  have  acted  intelligently,  in  or- 
dering the  bonds  issued." 

It  is  contended  that  the  defense  is  sustain- 
ed by  Bamett  v.  Denison,  145  U.  S.  135,  139, 
12  Sup.  Ct.  819.  That  case  has  no  applica- 
tion to  the  issues  here  presented.  The  only 
point  there  decided  was  that  the  requirement 
of  its  charter  that  all  bonds  issued  by  the 
city  of  Denison  "shall  specify  for  what  pur- 


pose they  were  issued"  was  not  satisfied  by  a 
bond  that  purported  on  its  face  to  be  issued 
by  virtue  of  an  ordinance,  the  date  of  which 
was  given,  but  not  its  title  or  contents. 

The  conclusion  we  have  reached  upon  legal 
grounds,  and  in  accordance  with  our  former 
decisions,  is  the  more  satisfactory  because  of  [ 
the  long  time  which  elapsed  before  any  ques- 
tion was  i-aised  by  the  city  as  to  the  validity 
of  the  bonds.  The  city  having  authority, 
under  some  circumstances,  to  put  these 
bonds  upon  the  market,  and  having  issued 
them  under  coi-porate  seal  of  the  city,  and 
under  the  attestation  of  its  highest  officer, 
certifying  that  they  were  issued  in  payment 
of  a  subscription  of  stock  made  in  pursuance 
of  the  city's  charter,  the  principles  of  justice 
demand  that  the  bonds,  in  the  hands  of  bona 
fide  holders  for  value,  should  be  met  accord- 
ing to  their  terms,  unless  some  clear,  well- 
settled  rule  of  law  stands  in  the  way.  No 
such  obstacle  exists. 

The  court  answers  the  first,  second,  and 
fourth  questions  in  the  negative,  and  the 
third  in  the  affirmative.  Its  answer  is  in 
the  negative  to  the  first  clause,  and  in  the 
affirmative  to  the  second  clause,  of  the  fifth 
question. 


ESTOPPEL  BY  COURSE  OF  DEALING  OR  RECITALS  IX  BONDS. 


205 


BOARD  OF  SUP'RS  OF  CUMBERLAND 
COUNTY  V.  RANDOLPH. 

(16  S.  E.  722,  89  Va.  614.) 

Supreme   Court  of   Appeals  of   Virginia.     Feb. 
2,  1893. 

Appeal  from  Cuniborland  county  court. 

Application  by  one  Randolph  for  a  man- 
damus to  compel  the  board  of  supei-visoi-s  of 
Cumberland  county  to  levy  a  tax  for  the  pay- 
ment of  certain  couiX)ns  due  on  coupon  bonds 
issued  by  defendant  countj-.  Jud^'uient  was 
entered  for  petitioner  on  an  order  granting  the 
WTit,  and  defendants  bring  error.     Airinued. 

Wm.  M.  Flanagan,  E.  P.  Buford,  and  R.  R. 
Fauntleroy,  for  plaintiffs  in  error.  Pegram  & 
Stringfellow  and  J.  P.  Fitzgerald,  for  defend- 
ant in  eiTor. 

LEWIS,  P.     The  first  point  made  by  the  ap- 
pellants is  that  upon  the  facts  stated  in  the 
an.s\\er,    which    was    not    traversed,    the    writ 
ought  to  have  been  denied.     But  this  is  a  mis- 
taken view.     At  common  law  the  return  was 
not  ti-aversable,  the  party  being  left  to  his  ac- 
tion for  a  false  retiu-n.     If,  in  such  action,  the 
return  was  falsified,  a  peremptory  mandamus 
was   granted.     Bac.    Abr.    tit.    "Mandamus." 
The  defects  of  this  procedure  were,  to  a  cer- 
tain extent,  remedied  by  the  statute  of  Anne 
(chapter  20),    which  statute   has  not  been  re- 
enacted  in  Virginia.     Section  oUl-t  of  the  Code, 
however,  provides   that  the  answer   shall  be 
"subject  to  any  just  exceptions;"  and  here,  it 
is  true,  there  are  none.     But,  treating  the  an- 
swer as  though  it  had  been  demurred  to,  the 
result  bj'  no  means  follows  for  which  the  ap- 
pellants contend. 
And,  first,  it  is  to  be  observed  that  the  com- 
I  petency  of  the  legislature  to  authorize  counties 
'  or   other   municipalities   to    subscribe    to   the 
.  stock   of  a   railroad    company,    and    to   issue 
I  bonds  in  payment  of  such  subscriptions,  is  un- 
questional)le;    and  this  authority'  may  be  con- 
(  f erred  with  or  without  the  sanction  of  a  popu- 
lar vote.     The  legislature  possesses  all  legis- 
/  lative  power  not  prohibited  to  it,  and  there  is 
f   no  constitutional  restriction    upon   its   powers 
in  matters  of  this  sort.     The  provision  of  the 
,  constitution  of  Virginia,  that  "the  state  shall 
I  not  subscribe  to,  or  become  interested  in.  the 
I  stock  of  anj'  company,  association,  or  coipora- 
5  tion,"  refers  to  subscriptions  by  the  state,  and 
not  to  a  case  like  the  present.     Redd  v.  Super- 
visors, 31  Grat.  GOo;    Railroad  Co.  v.  County  of 
Otoe,    16    Wall.    GG7.     Legislative    authority, 
''  n.oreover,  as  in  the  present  case,  to  issue  "c-ou- 
pon  bonds,"  Implies  authority  to  issue  bonds 
and  coupons  payable  to  bearer,  which  are  ne- 
gotiable instruments   having  all   the   qualities 
and  iuoidoiits  of  commercial  paper.    Arents  v. 
Com.,  18  Grat.   7.")0;    Gelpcke  v.  Dubuque.   1 
Wall.  175;   Thompson  v.  Lee  Co.,  3  Wall.  327; 
Livingston  Co.  v.  Bank.  128  U.  S.  102,  9  Sup. 
Ct.  18;   1  Dill.  Mun.  Coi-p.  (-ith  Ed.)  §  513.     It 
Is  also  important  to  observe  that  the  holder  of 
such  instruments  is  presumed  to  be  a  bona  fide 
holder  for  value,  before  maturity,  unless  fraud 


or  illegality  in  the  inception  of  the  paper  be 
shown.  1  Daniel,  Xeg.  Inst.  §§  812,  815; 
Smith  V.  Sac  Co.,  11  Wall.  139.  And  the  ques- 
tion, therefore,  is,  do  the  matters  set  up  in  the 
answer  constitute  a  good  defense  as  against 
such  a  holder? 

The  main  ground  relied  on  is  that  the  elec- 
tion held  under  the  ac(»  of  February  5,  1880, 
was  not  legally  held,  for  want  of  notice.  But 
the  bonds  from  which  the  coupons  in  question 
were  detached  were  not  issued  under  that  act, 
but  under  the  act  of  February  8,  1888;  and, 
independently  of  this  consideration,  the  ob- 
jection is  without  merit.  The  doctrine  of  the 
supreme  court  of  the  United  States,  and  the 
one  most  con.<onant  with  reason  and  justice, 
is  that  where  a  municipal  coi-poration  has  legis- 
lative aiUliority  to  issue  negotiable  securities, 
dependent  only  uix)n  the  adoption  of  certain 
preliminary  proceedings,  such  as  a  popular  elec- 
tion, the  bona  fide  holder  has  a  right  to  as- 
sume that  such  preliminary  proceedings  have 
been  regularly  taken,  if  the  fact  be  certified 
on  the  face  of  the  instnmients,  or  on  the  face 
of  the  bonds  from  which  negotiable  coupons 
are  annexed,  hy  the  proper  otfieers,  whose  duty 
it  is  to  ascertain  it.  In  such  case  the  recital 
is  itself  a  decision  of  the  fact  by  the  appointed 
tribunal,  and  estops  the  corporation,  as  against 
such  holder,  to  contest  it.  The  latter  is  not 
bound  to  ascertain  the  truth  or  falsity  of  such 
recital,  or  to  look  further  than  to  see  whether 
the  requisite  legislative  authority  has  been 
conferred.  Accordingly,  such  instnunents  have 
often  been  held  valid,  in  the  hands  of  a  bona 
fide  holder,  under  circumstances  which  would 
sustain  a  direct  proceeding  against  the  munici- 
pality to  annul  them,  or  to  prevent  their  issue. 
Commissioners  v.  Aspinwall,  21  How.  539; 
Supervisors  v.  Schenck,  5  Wall.  772;  St.  Jo- 
seph Tp.  V.  Rogers,  16  Wall.  644;  County  of 
Warren  v.  Marcy,  97  U.  S.  9G;  Town  of  Colo- 
ma  V.  Eaves,  92  U.  S.  484;  Commissioners  v. 
Bolles,  94  U.  S.  104;  1  Dill.  Mun.  Corp.  (4th 
Ed.)  §  549.  Indeed,  this  court,  in  De  Voss  v. 
City  of  Richmond.  IS  Grat.  338,  went  further, 
and  applied  the  principle  of  estoppel  in  respect 
to  a  bond  not  negotiable.  In  that  case  tlie 
bond  in  question  was  issued  by  the  city  in  lieu 
of  a  bond  which  had  been  previously  confis- 
cated by  the  late  Confederate  government,  but 
there  was  nothing  on  its  face  to  indicate  that 
fact;  it  being  in  form  an  unconditional  promise 
to  pay.  It  was  conceded,  moreover,  that  in 
reissuing  it  in  that  form  the  city  authorities 
disobeyed  the  mandate  of  an  express  ordhiance 
in  regard  to  reissuing  bonds  in  lieu  of  confis- 
cated bonds,  and  exceeded  their  authority. 
But  as,  in  the  opinion  of  the  court,  its  uncon- 
ditional form  was  equivalent  to  a  representa- 
tion by  the  city  that  it  could  be  purchased  with 
safety,  it  was  held  that,  as  against  a  bona  fide 
holder  for  value,  the  city  was  estopped  to  deny 
its  validity.  "From  the  nature  of  the  busi- 
ness," said  the  court,  "the  city  knew  that  tliis 
representation,  conveyed  by  the  foi-m  of  the 
bond,  would  be  relied  on,  and  must  have  in- 
tended that  it  should  be.     When  a  party  has 


206 


MUNICIPAL    SECURITIES. 


'  relied  upon  it,  and  in  good  faith  paid  tiis  money 
■  on  tlie  faith  of  it,  it  would  be  the  height  of  in- 
justice to  allow  the  city  to  say  that  it  is  not 
true,  and  that  it  was  his  folly  to  believe  it." 
Besides,  whatever  ground  of  objection  there 
might  be  if  the  case  stood  upon  the  act  of  Feb- 
ruary 5,  18SG,  alone,  any  irregularities  which 
may  have  occuiTed  in  the  proceedings  under 
that  act  were  cured  by  the  act  of  February  8, 
18S8.  The  latter  act  recognized  the  validity 
of  the  subscription  that  had  been  made,  and 
all  that  had  been  done  under  the  prior  act,  and 
in  express  tenns  authorized  the  issue  of  couiwn 
bonds,  on  the  completion  of  the  railroad  across 
the  counties  of  Cumberland  and  Powhatan,  in 
lieu  of  the  conditional  bonds  which  had  al- 
ready been  issued  to  the  railroad  company  un- 
der the  prior  act.  This  it  was  clearly  compe- 
tent for  the  legislature  to  do,  both  on  principle 
and  authority.  As  was  remarked  by  Judge 
Burks  in  Redd  v.  Supervisor's,  31  Grat.  695, 
"defective  subscriptions  may  in  all  oases  be 
ratified  where  the  legislature  could  have  or- 
iginally conferred  the  power;"  citing  Thomp- 
son V.  Lee  Co.,  3  Wall.  327;  St.  .Joseph  Tp.  t. 
Rogers,  16  Wall.  644,  and  other  cases.  In  the 
present  case  tlie  bonds  from  which  the  coupons 
in  question  were  detached  are  payable  to  bear- 
er, as  are  the  coupons,  and  are  regular  and  un- 
l  conditional  on  their  face.  They,  moreover,  re- 
'  cite  that  they  are  issued  in  pursuance  of  the 
statutes  above  mentioned.  This  is  an  implied 
representation  that  the  only  condition  prece- 
dent prescribed  or  contemplated  by  the  act  of 
Febiiiary  8,  1888,  namely,  the  completion  of 
the  raid  aci'oss  the  said  counties,  had  been 
complied  with;  and  the  bona  fide  holder,  as 
already  stated,  was  not  bound  to  look  beyond 
this  recital,  except  to  the  act  authorizing  the 
bonds  to  be  issued. 

Nor  is  there  any  merit  in  the  objection  found- 
ed on  the  pendenoy  of  the  appeal  from  the  or- 


der of  the  board  of  supervisors  rejecting  the 
petitioner's  claim  on  account  of  the  coupons  in 
question.  It  was  not  necessary  to  present  the 
claim  for  allowance  to  the  board;  for,  to  all 
intents  and  purposes,  it  was  audited  when  the 
bonds  were  issued.  The  coupons  were  bind- 
ing obligations  of  the  county,  and  the  board 
had  no  power  to  disallow  them.  Its  duty  in 
the  matter  was  clear,  and  purely  ministerial, 
viz.  to  levy  a  tax  to  pay  them,  as  section  1248 
of  the  Code  requires.  Its  order,  therefore,  re- 
jecting the  claim,  fi-om  which  the  appeal  was 
unnecessarily  taken,  does  not  in  any  degree 
partake  of  the  nature  of  a  judgment.  A  boanl 
of  supervisors  in  Virginia  has  no  judicial  pow- 
ers of  any  sort.  This  was  decided  in  Board 
V.  Catlett's  Ex'rs,  86  Va.  158,  9  S.  E.  999,  and 
there  ai*e  many  like  decisions  by  courts  of  oth- 
er states.  Nor  is  there  any  doubt  that  manda- 
mus lies  to  compel  a  levy  to  be  made,  although 
the  coupons  have  not  been  reduced  to  judg- 
ment; for,  had  a  judgment  been  obtained,  the 
only  proper  remedy  to  enforce  it  would  be  by 
mandamus.  County  of  Greene  v.  Daniel,  102 
U.  S.  187;  Commissioners  v.  King,  13  Fla. 
451,  467. 

Nor  is  the  case  affected  by  the  allegation  in 
the  answer  that  the  petitioner  purchased  the 
couiwns  at  a  discount.  A  similar  objection 
was  overruled  in  Cromweh  v.  County  of  Sac, 
96  U.  S.  51,  in  which  case  it  was  said  that  as 
the  sales  of  such  securities  are  usually  made 
with  reference  to  prices  current  in  the  market, 
and  not  with  reference  to  their  par  value,  it 
would  lead  to  inconceivable  confusion  if  bona 
fide  purchasers  in  the  market  were  restricted 
in  their  claims  upon  such  securities  to  the 
sums  they  had  paid  for  them. 

This  sufficiently  disposes  of  the  case,  and 
rondel's  it  unnecessary  to  consider  any  other 
question  discussed  at  the  bar. 

Judgment  affirmed. 


ESTOPPEL  BY  COURSE  OF  DEALING  OR  RECITALS  IN  BONDS. 


207 


MERCER    COUNTY   v.    TROVIDEXT   LIFE 
&  TRUST  CO.  OF  PHILADELPHIA. 

(19  C.  C.  A.  44,  72  Fed.  623.) 

Circuit  Court  of  Appeals,  Sixth  Circuit.      March 
3,  1S9G. 

No.  326. 

Error  to  the  Circuit  Court  of  the  United  States 
for  the  District  of  Keutuclcy. 

.7.  B.  Thomp.son  and  Alex.  P.  Humphrey,  for 
plaintiff  in  error.  Thos.  W.  Bullitt  and  Sam- 
uel Dickson,  for  defendant  in  error. 

Before  TAFT  and  LURTON,  Circuit  Judges, 
and  SEVI-]REXS,  District  .Judge. 

LURTON,  Circuit  Judge.  The  primary  ques- 
tiou  which  is  to  be  decided  is  this:     Were  the 

(bonds  now  held  by  the  appellee  corporation  is- 
sued without  authority  of  law,  and  in  viola- 
tion of  the  restrictions  and  conditious  imposed 
by  the  act  of  May  15,  1S8G.  heretofore  set 
out,  and  under  which  they  purport  to  have 
been  issued?  If  they  were  issued  in  violation 
of  the  substantial  provisions  of  the  permissive 
j  act,  they  were  void,  unless  they  have  fallen 
j  into  the  hands  of  an  innocent  purchaser  for 
value,  and  the  requisite  circumstances  exist 
to  constitute  an  estoppel,  precluding  the  coun- 
ty from  showing  that  in  fact  they  were  issued 
in  violation  of  law. 

Passing  for  the  present  all  the  conditions 
precedent  to  the  actual  preparation  and  formal 
execution  of  the  bonds  under  the  third  sec- 
tion of  the  enabling  act,  we  shall  consider  the 
terms  and  conditions  imposed  by  the  fourth 
section,  so  far  as  the  issuance  of  the  bonds 
is  affected  l\v  that  section.  Aside  from  the 
positive  provision  of  the  fourth  section,  it  is 
evident,  upon  obvious  principles  of  law,  that 
these  bonds,  wlien  prepared  and  formally  exe- 
cuted according  to  the  provisions  of  the  third 
section,  were  invalid  obligations,  as  lacking 
the  essential  element  of  delivery,— a  step  as 
necessary  to  the  validity  of  a  bond  or  other 
negotiable  instrument  as  it  is  to  the  existence 
of  a  deed.  1  Daniel,  Neg.  Inst.  §  63;  Young  v. 
Clarendon  Tp.,  132  U.  S.  353,  10  Sup.  Ct.  107. 
But  whatever  doubt  miglit  exist  as  to  the  ob- 
ligatory character  of  these  bonds  while  still 
in  the  hands  of  the  county  officials  who  had 
prepared  and  signed  them,  the  fourth  section, 
in  clear  terms,  resolves.  No  power  to  make 
deliver}^  of  the  bonds  was  conferred  upon  the 
county  judge,  or  any  other  officer  of  the  coun- 
ty, and  all  duly  and  power  intrusted  to  them 
terminated  with  their  formal  execution;  the 
act  itself  declaring  that  the  bonds,  thus  appar- 
ently the  formal  conti'acts  of  the  county, 
"shall  not  be  binding  or  valid  obligations  un- 
til the  railway  of  the  said  company  shall  have 
been  so  completed  through  such  county  that 
a  train  of  cars  shall  have  passed  over  the 
same,  at  which  time  they  shall  be  delivered 
to  said  railroad  company."  Tlie  duty  of  the 
county  judge  with  refi'rence  to  these  incom- 
plete instruments  pending  compliance  with  the 


condition  upon  which  they  might  become  vital 
obligations,   by   delivery,   was  to   "order  that 
sucli  bonds  shall  be  deposited  with  a  trustee 
or  trust  company,  to  be  held  in  escrow,  and 
delivered  to  the  said  railroad  company  when 
it  shall  become  entitled  to  the  same  by  the 
construction  of  its  road  through  such  county." 
This  last  statutory  duty  was  performed,  and 
the  bonds  were  "deposited"  with  a  trustee,  to 
be  Iield  in  escrow  and  delivered  when  the  con- 
dition authorizing  delivery  had  been  perform- 
ed.    That  condition  was  that  the  railroad  of 
the    Louisville    Southern    Railroad    Company 
should  be  completed  "through"  the  county  of 
Mercer,  so  that  a  train  of  cars  should  have 
passed  over  the  same.     The  defense  of   the 
county  is   that  the  railroad   was  never   con- 
structed   through    the    county,    and    that   the 
trustee  violated  his  duty,  and  delivered  them 
before  that  condition  had  been  complied  with. 
The  finding  of  fact  touching  immediately  up- 
on compliance  with  this  condition  was  "that 
the  Louisville  Southern  Railroad  did  not  run 
from  one  line  of  the  county  of  Mercer  through 
to  the  opposite  or  to  another  line  of  the  coun- 
ty, but  that  its  raik-oad  entered  Mercer  county 
on  the  line  of  said  county  next  to  Anderson 
county,  and  ran  through  said  county  fifteen 
miles  to  Harrodsburg,  and  from  there  to  Bur- 
gin,  where  a  junction  was  made  with  the  Cin- 
cinnati Southern  Railroad,  making  in  all  19.72 
miles  of  railroad  in  said  county  of  Mercer; 
but   this   line   of   railroad   did    not   reach    the 
other  or  another  line  or  boundary  of  the  coun- 
ty by  about  two  miles  from  the  nearest  point." 
This  finding  seems  to  conclusively  settle  the  ' 
question   that  the  railroad   company   did  not 
construct    its    railroad    through    the    county. 
The  requirement  was  that  the  road  should  be 
completed  "through"  the  county,— not  through 
the  county  to  Harrodsburg.  or  to  Burgin.  or 
to   a  junction   with  the   Cincinnati   Southern 
Railroad,    but    through    the    county    entirely; 
that  is,  from  one  side  or  line  to  the  opposite 
or  another  side  or  line.    If  the  legislature  had 
used  the  very  common  preposition,  "through" 
in  any  limited  or  unusual  sense,  it  would  ap- 
pear in  the  context.     That  it  was  used  with 
its   ordinary  meaning   of   "from   one  side   to 
the  opposite  side"  or  another  side,  or  "from 
one  surface  or  limit  to  the  other  surface  or 
limit,"  seems  to  us  very  plain,  from  the  whole 
tenor  of  the  statute.    That  it  was  not  used  in 
the  sense  of  "to"  and  "into"  is  plain,  from  the 
proviso   of   the   same   act,    which   brings   the 
prepositions  "to"  and  "through"  into  apposi- 
tion,  in  the  provision  that   "the  subscription 
shall   not   be  binding"    "unless   such   railroad 
shall  pass  to  or  through  the  corporate  limits  of 
the    town   of   Harrodsburg."     The   argument  I 
that  this  was  a  substantial  compliance  with  ' 
the  condition  does  not  meet  with  our  assent.  | 
The  object  of  the  act  was  to  secure  to  Mercer 
county  a  railroad  entirely  through  the  coun- 
ty.     To    build    to    within    two    miles    of    the 
statutory  requirement  is  not  a  substantial  ful- 
fillment of  the  provision.     Whether  this  was/ 
an  important  or  unimportant  matter,  it  is  not 


208 


MUNICIPAL,    SECURITIES. 


for  us  to  say.  The  lesislature  bad  the  un- 
doubted authority  to  impose  this  coudition,  or 
any  other  it  saw  fit.  Whether  wisely  or  un- 
wisely, the  power  to  issue  any  bonds  was 
made  dependent  on  the  performance  of  this 
I  condition.  The  provisions  that  they  should 
I  not  be  vahd  until  the  performance  of  this  con- 
'  ditiou.  and  that  the  stakeholder  should  not  de- 
liver them  until  this  railroad  should  be  con- 
I  structed  through  the  county,  are  imperative, 
and  limit  the  power  of  the  county  and  of  this 
trustee  to  the  issuance  of  bonds  only  when  the 
requisite  facts  actually  existed.  These  restric- 
tions were  intended  to  secure  the  actual  com- 
pletion of  the  railroad,  and  guard  against  the 
possible  misapphcation  of  the  bonds  to  pur- 
,  poses  not  designed.  Restrictions  in  acts  of 
i  this  kind,  intended  to  guard  the  public  from 
'  the  negligence  or  crimes  of  their  oflicials,  and 
to  secure  exact  compliance  with  the  terms  up- 
'  on  which  the  power  of  taxation  may  be  exer- 
,  cised  in  aid  of  railroad  construction,  are  en- 
titled to  favorable  consideration.  The  uttei*- 
ances  of  the  supreme  coiirt  upon  the  effect  of 
restrictions  and  limitation.-!  in  such  legislation 
have  been  uniform,  and  announce  a  wise  pub- 
lic policy.  In  Barnum  v.  Okolona,  148  U.  S. 
39.3,  13  Sup.  Ct.  G38,  Mr.  Justice  Shiras.  for  the 
court,  said:  "That  municipal  corporations 
have  no  power  to  issue  bonds  in  aid  of  rail- 
roads, except  by  legislative  permission;  that 
the  legislature,  in  granting  permission  to  a 
municipality  to  issue  its  bonds  in  aid  of  a  rail- 
road, may  impose  such  conditions  as  it  may 
choose;  and  that  such  legislative  permission 
does  not  carry  with  it  authority  to  execute  ne- 
gotiable bonds,  except  subject  to  the  restric- 
tions and  conditions  of  the  enabling  act, — are 
propositions  so  well  settled  by  fre(iuent  de- 
cisions of  this  court  that  we  need  not  pause 
to  consider  them.  Sheboygan  Co.  v.  Parker, 
3  ^'all.  93-9(5;  Wells  v.  Supervisors,  102  U. 
S.  625;  Claiborne  Co.  v.  Brooks,  111  U.  S. 
400,  4  Sup.  Ct.  489;  Young  v.  Clarendon  Tp., 
132  U.  S.  340-34G,  10  Sup.  Ct.  107." 

In  Barnett  v.  Denisou,  145  U.  S.  139,  12 
Sup.  Ct.  819,  Mr.  Justice  Brown,  in  delivering 
the  opinion  of  the  court,  said:  "The  provi- 
sions of  the  statute  authorizing  them  must  be 
strictly  pursued,  and  that  the  purchaser  or 
holder  of  such  bonds  is  cliargeable  with  notice 
of  the  requirements  of  the  law  under  which 
thoy  are  issued." 

,  The  conclusion  we  reach  is  that  this  condi- 
/  tion  has  not  been  complied  with,  and  that  the 
trustee,  in  dehvering  these  bonds,  did  so  in 
violation  of  his  duty,  and  acted  without  au- 
thority of  law. 
/  This  brings  us  to  the  consideration  of  the 
'  question  as  to  whether  the  county  is  esto])i)ed 
to  make  this  defense.  The  learned  trial  judge 
found  as  a  fact  that  the  appellee  bought  in 
open  market,  for  value,  and  with  no  actual 
knowledge  that  the  conditions  imposed  by  the 
enabling  act  had  been  in  any  way  unper- 
formed. That  such  a  municipal  corporation 
had  no  general  authority  to  issue  such  nego- 
tiable securities,  and  that  the  purchaser  is 


chargeable  with  notice  of  the  terms,  condi- 
tions, and  requirements  of  the  permissive  stat- 
utes under  which  they  purport  to  be  issued,  is 
well  settled.  Marsh  v.  Fulton  Co.,  10  Wall. 
67(5;  McClure  v. "Township  of  Oxford,  94  U. 
S.  429;  Northern  Bank  v.  Porter  Tp.,  110  U. 
S.  609,  4  Sup.  Ct.  2.54;  Barnett  v.  Denison,  145 
U.  S.  139,  12  Sup.  Ct.  819;  Barnum  v.  Oko- 
lona, 148  U.  S.  395,  13  Sup.  Ct.  638;  Citizens' 
Sav,  «&  Loan  Ass'u  v.  Perry  Co.,  350  U.  S. 
701,  15  Sup.  Ct.  547. 

P^irst,  it  is  said  that  the  recital  in  these 
bonds  imports  a  compliance  with  all  the  re- 
strictions and  conditions  of  the  enabling  act, 
and  that  these  recitals  cannot  be  contradict- 
ed. The  recital  in  the  boixl  is  that  it  was 
"issued  pursuant  to  the  authority  conferred 
upon  the  said  county  by  an  act  of  the  legis- 
lature of  Kentucky  entitled,  'An  act  to  author- 
ize the  county  of  Mercer  to  subscribe  aid  to 
the  Louisville  Southern  Railroad  Company,' 
approved  May  15,  1886."  Looking  to  the  act 
referred  to,  as  the  purchaser  was  bound  to  do, 
he  discovered  that  these  bonds  were  to  be  exe- 
cuted and  deposited  in  escrow,  and  delivered 
only  upon  the  completion  of  the  Louisville 
Southern  Railroad  through  the  county  of  Mer- 
cer. By  this  provision  he  was  advised  that 
the  recital  that  the  bond  "was  issued  pursu- 
ant to  the  authority"  of  the  act  referred  to 
was  a  recital  which,  in  the  nature  of  things, 
could  only  refer  to  facts  antecedent  to  the 
deposit  of  the  bonds  in  escrow,  and  could  not 
possibly  operate  as  a  recital  covering  the  sub- 
sequent completion  of  the  railroad  through 
the  county.  The  enabling  act  operated  as  I 
notice  to  him  that  the  bonds  were  not  "bind-  ' 
ing  and  valid  obligations"  when  placed  in  , 
escrow,  and  would  not  become  valid  and  legal  / 
securities  "until  the  railway  of  the  said  com-  ' 
pany  shall  have  been  so  completed  through  j 
such  county  that  a  train  of  cars  shall  have  : 
passed  over  the  same."  The  purchaser  there-  ' 
fore  bought  with  notice  that  the  deiwsitary  , 
held  the  bonds  "in  escrow,"  and  had  no  power 
to  deliver  them  until  the  company  should  "be-  j 
come  entitled  to  the  same  by  the  construction  ( 
of  its  road  through  the  county."  The  recitals 
in  the  bonds  must  therefore  be  referred  to  the 
acts  which,  under  the  permissive  law,  were 
to  precede  the  execution  and  deposit  of  the 
bonds  in  escrow,  and  do  not  operate  as  a  re- 
cital of  facts  which  could  not  have  existed 
when  they  were  made.  Where  recitals  are 
relied  upon  to  cut  oi^  the  defense  that  mu- 
nicipal bonds  are  in  fact  issued  without  au- 
thority of  law,  or  in  violation  of  law,  they 
should  be  fairly  and  reasonably  construed, 
and  be  such  as  to  clearly  indicate  that  the 
conditions  and  requisites  of  the  law  had  beon 
complied  with.  Risley  v.  Village  of  Howell, 
12  C.  C.  A.  218.  64  Fed.  453;  Northern  Bank 
V.  Porter  Tp.,  110  U.  S.  618,  619,  4  Sup.  Ct. 
254;  School  Dist.  v.  Stone,  106  U.  S.  183-187, 
1  Sup.  Ct.  84.  In  the  case  last  cited,  Mr. 
Justice  Hiirlan,  for  the  court,  concerning  the 
construction  of  words  in  a  bond  claimed  to 
operate  as  a  recital  estopping  a  municipality 


ESTOPPEL  BY  COURSE  OF  DEALING  OR  RECITALS  IN  BONDS. 


209 


from  showing  that  the  bonds  had  been  issued 
in  violation  of  law,  said:  "Numerous  cases 
have  been  determined  in  this  court  in  which 
we  have  said  that  where  a  statute  confers 
power  upon  a  municipal  corporation,  upon 
the  performance  of  certain  precedent  condi- 
tions, to  execute  bonds  in  aid  of  the  construc- 
tion of  a  railroad,  or  for  other  lilie  purposes, 
and  imposes  upon  certain  officers— invested 
with  authority  to  determine  whether  such 
conditions  have  been  performed — the  respon- 
sibility of  issuing  them  when  such  conditions 
have  been  comphed  with,  recitals  by  such 
officers  that  the  bonds  have  been  issued  'in 
pursuance  of,'  or  'in  conformity  with,'  or  'by 
virtue  of,'  or  'by  authority  of,'  the  statute, 
have  been  held,  in  favor  of  bona  fide  pur- 
cliasers  for  value,  to  import  fuU  compliance 
with  the  statute,  and  to  preclude  inquiry  as 
to  whether  the  precedent  conditions  had  been 
performed  before  the  bonds  were  issued.  But 
'in  all  such  cases,  as  a  careful  examination 
will  show,  the  recitals  fairly  import  a  compli- 
ance, in  all  substantial  respects,  with  the 
statute  giving  authority  to  issue  the  bonds. 
We  are  unwilling  to  enlarge  or  extend  the 
rule  now  established  by  numerous  decisions. 
I  Sound  policy  forbids  it.  Where  the  holder  re- 
'  lies  for  protection  upon  mere  recitals,  they 
should  at  least  be  clear  and  unambiguous,  in 
order  to  estop  a  municipal  corporation,  in 
whose  name  such  bonds  have  been  made, 
from  showing  that  they  were  issued  in  viola- 
tion or  without  the  authority  of  law." 

There  is  therefore  no  estoppel  by  recital  be- 
cause there  is  no  statement  in  the  bonds  im- 
plying that  the  Louisville  Southern  Railroad 
had  been  completed  throiigh  the  county,  as 
required  by  the  provisions  of  the  enabling  act. 
Buchanan  v.  Litchfield,  102  U.  S.  278;  Car- 
roll Co.  V.  Smith.  Ill  U.  S.  561,  562,  4  Sup. 
Ct.  539;  Lake  Coimty  v.  Graham,  130  U.  S. 
674,  9  Sup.  Ct.  654;  Citizens'  Sav.  &  Loan 
Ass'n  V.  Ferry  Co.,  156  U.  S.  692-701,  15 
Sup.  Ct.  547.  We  have  then  to  deal  with 
bonds  which  contain  no  recital  whatever  im- 
plying that  the  most  important  of  tlie  condi- 
tions precedent  specified  in  the  enabling  act, 
upon  which  the  power  to  issue  them  depend- 
ed, had  been  performed.  In  this  respect  the 
case  is  distinguished  from  cases  where  the 
recitals  were  such  as  to  imply  compliance 
with  all  precedent  conditions,  such  as  that 
they  had  been  "issued  pursuant"  to  a  particu- 
lar act,  as  in  Knox  Co.  v.  Aspinwall,  21  How. 
540,  or  "by  virtue  of  the  law  of  the  state  en- 
titled 'An  act,' "  etc.,  as  in  Insurance  Co.  v. 
Bruce,  105  U.  S.  328,  or  "under  and  in  pur- 
suance of  an  act,"  etc..  as  in  Lewis  v.  Com- 
missioners, 105  U.  S.  739,  or  "under  authority 
of  an  act,"  etc.,  as  in  Oregon  v.  Jennings, 
119  U.  S.  74.  7  Sup.  Ct.  124.  This  court,  in 
Cadillac  v.  Institution,  7  C.  C.  A.  574,  and 
58  Fed.  935,  16  U.  S.  App.  .545.  held  that,  un- 
der an  act  authorizing  the  issuance  of  new 
bonds  "to  extend  the  time  of  payment  of  old 
bonds  falling  due,"  a  recital  that  a  bond  was 
issued  "for  the  purpose  of  extending  the  time 
ABB.CORF.— 14 


of  payment  of  bonds  falling  due"  estopped 
the  city  from  showing  that  the  bonds  thus 
refunded  were  void  bonds.  So  in  Risley  v. 
Village  of  Howell,  12  C.  C.  A.  218,  64  Fed. 
453,  the  bonds  recited  that  they  were  issued 
under  an  act  approved  February  25,  1885, 
which  act  authorized  the  issuance  of  bonds 
"to  raise  money  to  make  public  improve- 
ments." It  was  held  that  it  was  not  a  de- 
fense to  show  that  in  fact  the  money  obtained 
for  the  bonds  had  been  expended  under  an 
ordinance,  referred  to  in  the  bonds,  for  a  pur- 
pose not  a  "public  improvement,"  within  the 
decisions  of  the  supreme  court  of  the  state. 
Un  the  contrary,  the  case  falls  distinctly  with- 
in another  class  of  cases,  where  the  bonds 
either  contained  no  recitals,  or  the  recitals 
were  made  by  one  not  intrusted  with  the  duty 
of  ascertaining  and  determining  the  facts  re- 
cited. Dixon  Co.  V.  Field,  111  U.  S.  83,  4 
Sup.  Ct.  315;  German  Sav.  Bank  v.  Franklin 
Co.,  128  U.  S.  520,  9  Sup.  Ct.  1.59;  Barnett 
V.  Denison,  145  U.  S.  139,  12  Sup.  Ct.  819; 
Citizens'  Sav.  &  Loan  Ass'n  v.  Perry  Co.,  156 
U.  S.  701,  15  Sup.  Ct.  547. 

But  it  is  argued  that  the  Kentucky  enabling 
act  is  peculiar,  and  that  the  absence  of  re- 
citals in  bonds  issued  thereunder  is  imma- 
terial, inasmuch  as  the  circumstances  attend- 
ing the  execution  of  these  bonds  were  such 
as  that  there  could  be  no  recitals  on  the  face 
of  the  bonds  importing  performance  of  condi- 
tions which  were  to  be  complied  with  after 
their  formal  execution  and  deposit  in  esci'ow. 
This  was  the  view  entertained  by  Judge  Barr, 
who,  upon  this  ground,  held  that  the  decision 
of  the  trustee,  before  delivering  them  to  the 
railroad  company,  that  all  precedent  condi- 
tions had  been  complied  with,  precluded  the 
county  from  contradicting  that  decision  after 
the  bonds  had  passed  into  the  hands  of  inno- 
cent purchasers.  To  support  this  position  it 
is  necessary  to  construe  this  enabling  act  as 
not  only  empowering  the  trustee  to  ascertain 
and  determine  whether  all  conditions  subse- 
quent to  such  deposit  had  been  i)erformed,  but 
that  such  determination  should  estop  the 
county,  as  against  an  innocent  purchaser  of 
the  bonds,  although  no  such  determination  ap- 
peared on  the  bond,  either  through  a  recital 
or  indorsement.  Certainly  none  of  the  nu- 
merous opinions  of  the  supreme  comt  affords 
any  express  authority  for  such  an  interpreta- 
tion of  this  act.  A  careful  examination  of  the 
opinions  of  that  court  will,  it  is  confidently 
believed,  show  that,  where  railroad  construc- 
tion bonds  have  been  issued  in  violation  of 
the  law  under  which  authority  was  granted, 
the  municij)ality  has  never  been  held  estop- 
ped to  defend  upon  that  ground,  unless  rejire- 
sentations  appeiu-ed  on  the  bonds  themselves 
impoi-tiug  full  compliance  with  the  conditions 
impjjsed  by  the  enabling  act.  The  estoppel 
has  been  a  consequence  of  recitals  or  indorse- 
ments made  by  officials  empowered  to  decide 
the  facts  recited,  and  which  a  purchaser  was 
authorized  to  rely  upon  as  speaking  the  truth. 
The  rule  which  we  deduce  from  the  long  line 


210 


MUNICIPAL    SECURITIES. 


of   decisions   made   by  that   court   as   to   the 
application  of  the  doctrine  of  estoppel  to  mu- 
nicipal bonds  is  that  where  bonds  are  issued 
by  a  municipal  corporation  under  a  special 
and  limited  authority,  imposing  restrictions 
and   conditions,   but  authorizing   oflBcials   of 
such  municipality  to  execute  and  issue  such 
bonds  when  the  conditions  precedent  imposed 
have  been  complied  with,  and  it  can  fairly 
and  reasonably  be  gathered  from  the  act  that 
the    officials    so    authorized    to    execute    the 
bonds  were  also  empowered  to  ascertain  and 
determine  that  the  requisite  facts  and  circum- 
stances did  exist,  or  all  conditions  precedent 
had  been  complied  with,  and  this  determina- 
tion or  decision  has  been  embodied  in  the  re- 
citals of  the  bonds,  a  purchaser  without  other 
notice,  and  for  value,  would  have  a  right  to 
rely  upon  the  truth  of  the  representations  ap- 
pearing on  the  bond,  and  need  make  no  fur- 
ther inquiry.    Coloma  v.  Eaves,  92  U.  S.  484; 
Dixon  Co.  V.  Field,  111  U.  S.  93,  4  Sup.  Ct.  315; 
Gei-man  Sav.  Bank  v.  Frankhn  Co.,  12S  U.  S. 
526,  9  Sup.  Ct.  159;    Citizens'  Sav.  &  Loan 
Ass'n  V.  Perry  Co.,  156  U.  S.  701,  15  Sup.  Ct. 
j  547.     The  principle  is  that  when  bonds,  on 
I  their  face,  affirmatively  import  a  compliance 
}  with  the  conditions  upon  which  they  might 
i  lawfully  issue,  a  defense  based  upon  a  con- 
j  tradiction  of  the  recitals  thus  made  by  an 
;   official  empowered  by  the  law  to  decide  the 
j  facts  recited  will  not  be  permitted,  when  the 
1  bond  has  come  to  the  hands  of  a  bona  fide 
'  holder  for  value.    This  doctrine  does  not  ap- 
ply as  between  a  railroad  company  receiving 
such  bonds  in  violation  of  law,  and  the  mu- 
nicipality itself;   nor  has  it  ever  been  applied 
In  favor  of  a  holder  who  was  not  an  innocent 
purchaser  for  value.    Dill.  Mun.  Corp.  §  519; 
Chambers    Co.    v.    Clews,    21    Wall.    317-321. 
I  False  recitals  have  never  been  held  conclusive 
I  as  between  the  original  parties,  or  in  favor 
;  of  purchasers  with  notice,  for  the  obvious  rea- 
■  son  that  an  essential  element  to  an  estoppel 
in  pais  is  that  the  representation  should  mis- 
i    lead  and  deceive  one  who  had  a  right  to  rely 
upon    the    truth   of    the    representation.      It 
.  would  seem  to  follow,  from  the  reasons  upon 
I   which  an  estoppel   is  said  to  arise,   that   if 
I    bonds  are  issued  without  recitals,  but  in  vio- 
;    lation  of  law  or  authority,   there  exists  no 
reason  why  they  should  not  be  open  to  de- 
fense when  action  is  brought  even  by  one  who 
bought  without  actual  knowledge  that  they 
had  been  issued  without  performance  of  pre- 
^  cedent   conditions.      In   such    case   the   pur- 
chaser buys  at  his  peril,  and  cannot  rely  upon 
his  mere  ignorance,  nor  upon  the  mere  fact 
that  the  bonds  had  been  issued,  and  were 
\  found  in  circulation.    Marsh  v.  Fulton  Co.,  10 
Wall.  676;    Buchanan  v.  Litchfield.  102  U.  S. 
278;    Merchants'  Exch.  Nat.  Bank  v.  Bergen 
Co.,  115  U.  S.  384,  6  Sup.  Ct.  88;    Daviess  Co. 
V.  Dickinson,  117  U.  S.  0.57,  6  Sup.  Ct.  897; 
German  Sav.  Bank  v.  Franldin  Co.,  128  U. 
S.  526,  9  Sup.  Ct.  159;    Carroll  Co.  v.  Smith, 
111  U.  S.  556,  4  Sup.  Ct.  539;    Chambers  Co. 
V.    Clews,    21   Wall.   317-321;     Citizens'    Sav. 


&  Loan  Ass'n  v.  Perry  Co.,  156  U.  S.  701,  15 
Sup.  Ct.  547;  Bamett  v.  Denison,  145  U.  S. 
135,  12  Sup.  Ct.  819. 

The  mere  fact  that  the  bonds  have  been  Is-  ^ 
sued,  and  are,  in  form,  negotiable  securities,  I 
if    entitled    to    any    significance    whatever,  1 
would  only  raise  a  presumption  that  they  had  , 
been   delivered  to  the  railroad  company  by  i 
the  trustee  in  compliance  with  the  terms  of  ' 
the  law.     Such  a  presumption  would  not  be  i 
conclusive,  and  the  county  would  not  be  es-  , 
topped,  even  as  against  one  who  bought  in  ! 
actual   ignorance   of    the    true   facts.      This 
seems   the   well-settled   rule,   established  by 
Buchanan  v.  Litchfield,  Daviess  Co.  v.  Dick- 
inson,  German   Sav.   Bank  v.   Franklin   Co., 
and  Citizens'  Sav.  &  Loan  Ass'n  v.  Perry  Co., 
heretofore  cited.     In  the  case  last  cited  this 
precise  point  was  urged.    Justice  Harlan,  for 
a  unanimous  court,  in  answer,  said:     "But  it 
is  urged  that,  the  bonds  having  been  executed 
and  issued  by  those  whose  duty  it  was  to  exe- 
cute and  issue  them  whenever  that  could  be 
rightfully   done,   the   county   is   estopped   to 
plead  their  invalidity,  as  between  It  and  a 
bona  fide  purchaser  for  value.    This  argument 
would  have  force  if  the  material  circumstan- 
ces bringing  the  bonds  within  the  authority 
given  by  law  were  recited  in  them.     In  such 
a  case,  according  to  the  settled  doctrines  of 
this  court,  the  county  would  be  estopped  to 
deny  the  truth  of  the  recital,  as  against  bona 
fide   holders   for   value.     But   this   court,   in 
Buchanan   v.   Litchfield,   102   U.    S.  278-292, 
upon   full   consideration,    held   that  the   mere 
fact  that  the  bonds  were  issued,  without  any 
recital   of  the  circumstances  bringing   them 
within  the  power  granted,  was  not  in  itself 
conclusive   proof,    in   favor   of   a   bona   fide 
holder,  that  the  circumstances  existed  which 
authorized  them  to  be  issued." 

Does  the  act  under  which  these  bonds  were 
issued  so  far  depart  from  the  statutes  con- 
strued in  the  cases  cited  as  to  warrant  us  in 
holding  that  a  purchaser  need  make  no  fur- 
ther inquiry  than  would  lead  him  to  informa- 
tion that  the  trustee  had  made  such  a  deci- 
sion as  that  found  by  the  circuit  court,  and 
that,  if  he  buys  without  any  inquiry,  he  is 
only  obliged  to  prove  by  evidence  extraneous 
to  the  bond  that  such  a  decision  was  in  fact 
made?  Unless  this  act  can  be  construed  as 
malcing  the  power  of  the  county  to  issue  these 
bonds  dependent,  not  on  the  actual  construc- 
tion of  this  railroad  tlirough  the  county,  but 
upon  the  decision  of  this  trustee  that  it  had 
been  so  constnicted,  the  whole  foundation  for 
the  argument  disappears.  This  is  the  test  to 
be  applied  to  every  case,  even  where  recitals 
are  relied  upon  to  defeat  a  defense.  In  the 
leading  case  of  Dixon  Co.  v.  Field,  111  U.  S. 
93,  4  Sup.  Ct.  315,  the  rule  for  construction  of 
such  enabling  act  is  thus  stated  by  Mr.  Jus- 
tice Matthews:  "But  it  still  remains  that 
there  must  be  authority  vested  in  the  officers, 
by  law,  as  to  each  necessary  fact,  whether 
enumerated  or  nonenumeratetl,  to  ascertain 
and  determine  its  existence,  and  to  guaranty 


ESTOPPEL  BY  COURSE  OF  DEALING  OR  RECITALS  IN  BONDS.         211 


to  those  dealing  with  them  the  truth  and  con- 
clusiveuL'SS  of  their  admissions.  In  such  a 
case  the  meaning  of  the  hiw  granting  power 
to  issue  bonds  is  that  they  may  be  issued,  not 
upon  the  existence  of  certain  facts,  to  be  as- 
certained and  determined  whenever  disputed, 
but  upon  the  ascertainment  and  determina- 
tion of  their  existence  by  the  otiicers  or  body 
designated  by  law  to  issue  tlie  bonds  upon 
such  a  contingency.  This  becomes  very  plain 
when  we  suppose  the  case  of  such  a  power 
granted  to  issue  bonds,  upon  the  existence  of 
a  state  of  facts  to  be  ascertained  and  deter- 
mined by  some  persons  or  tribunal  other  than 
those  authorized  to  issue  the  bonds.  In  that 
case  it  would  not  be  contended  that  a  recital 
of  the  facts  in  the  insti'ument  itself,  contrary 
to  the  finding  of  those  charged  by  law  with 
that  duty,  would  have  any  legal  effect." 

It  is  to  be  observetl  at  the  outset  that  it  is 
significant  that  while  the  act  provides,  in 
very  plain  language,  that  the  requisite  facts 
antecedent  to  the  preparation  and  deix)sit  of 
the  bonds  with  the  trustee  shall  be  ascertain- 
ed and  determined  by  the  county  judge,  no 
such  explicit  statement  is  found  regarding  tlie 
determination  of  the  subsequent  precedent 
conditions  by  this  tnistee.  If  be  is  empow- 
ered to  make  any  determination  whatever, 
the  power  is  only  inferontially  granted.  So 
it  is  significant  that  no  provision  is  found  re- 
quiring an  indorsement  of  such  decision  on 
the  bonds,  or  the  making  of  some  other  per- 
manent record  that  so  grave  a  determination 
had  been  made.  The  very  failure  to  provide 
in  clear  terms  for  a  determination  by  this 
trustee  of  the  existence  of  conditions  which 
could  only  arise  after  the  county  judge  had 
parted  with  the  bonds  and  lost  all  control 
over  them,  and  to  provide  for  some  method  of 
certifying  that  determination,  affords  a 
strong  presumption  against  the  interpretation 
now  contended  for.  Especially  is  this  notice- 
able in  view  of  the  very  well  defined  distinc- 
tion between  bonds  with  and  without  recit- 
als. But  it  is  said  that  the  act  authorized 
the  making  of  "negotiable  bonds,"  and  that 
it  ought  not  to  be  presumed  that  the  legisla- 
ture intended  that  "negotiable  bonds"  should 
be  forever  open  to  the  defense  that  the  rail- 
road had  never  been  completed  as  required  by 
the  act,  and  that  we  ought,  therefore,  to  infer 
that  the  trustee  was  authorized  to  decide  as 
to  whether  there  had  been  a  compliance  with 
this  condition,  and  that  his  decision  should 
be  conclusive.  Undoubtedly,  the  commercial 
value  of  such  bonds  would  be  much  improved 
if  the  mere  fact  of  their  issuance  should,  in 
favor  of  innocent  holders,  be  conclusive  evi- 
dence of  both  the  autliority  to  issue  them 
and  the  regularity  of  the  exercise  of  that 
power.  This,  however,  is  not  the  law.  If 
the  legislature,  by  providing  that  these  bonds 
should  be  negotiable,  meant  to  cut  off  all  de- 
fenses, by  the  decision  of  the  county  judge  as 
to  facts  antecedent  to  the  deposit  in  escrow, 
and  by  the  decision  of  the  trustee  as  to  all 
facts  subsequent  to  such  deposit,  it  is  most 


remarkable  that  it  did  not  provide  for  some 
indorsement  of  that  decision  on  the  bonds. 
As  it  is,  the  fact  that  he  ever  made  such  a 
decision  depends  upon  evidence  in  pais,  and 
is  subject  to  all  the  dangers  of  such  evidence. 
The  argument  based  on  the  inconvenience  of 
making  proof,  in  every  action  on  such  bonds, 
of  the  fact  of  the  completion  of  the  railroad, 
amounts  to  little,  in  arriving  at  the  meaning 
of  this  act,  if  the  litigant  in  such  a  suit  is 
driven  to  make  proof  of  a  decision  by  the  tras- 
tee  by  evidence  equally  difticult  to  preserve. 
But  this  provision  authorizing  the  issuance 
of  "negotiable  bonds"  must  not  be  construed 
alone,  nor  merely  in  connection  with  the  pro- 
vision that  the  trustee  should  deliver  them 
when  the  railroad  was  completed.     There  are 
many  considerations  which  lead  us  to  the  con- 
clusion that,  while  it  was  undoubtedly  the 
duty  of  this  custodian  to  inform  himself  as  to 
the  existence  of  the  facts  which  would  justify 
him  in  making  a  delivery  of  these  bonds,  yet 
that  information  was  only  for  the  purpose  of 
enabling  him  to  prudently  discharge  his  duty, 
and  protect  himself  and  the  parties  interest- 
ed from  the  consequence  of  an  illegal  and 
unauthorized  delivery.     The  power  of  this  de-  \ 
positary  to  receive,  hold,  and  deliver  these  I 
bonds  came  from  the  enabling  act  alone.    He  / 
was  not  constituted  the  agent  of  either  the  \ 
railroad  company  or  the  county,  though  he  ) 
was  designated  by  an  order  of  the  county  I 
judge.     This  depositary  need  not  have  been  a^ 
person  at   all.     A  corporate  trust   compn 
might  have   been   designated.     Neither 
dence,  citizenship,  nor  interest  in  or  knowl- 
edge  of  the  locality  was  essential  to  the  com-  \ 
petency  of  the  appointee.    The  relation,  there-  z 
fore,  that  this  depositary  bore  to  the  county,   \ 
is  not  of  such  a  character  as  to  lead  to  the    ' 
presumption   that  it   was   intended   that   he 
should    conclude    the    county    through    any  i 
agency  for  or  relation  to  it.     The  bonds  were  / 
not  to  be  "delivered"  to  him,  but  "deposited" 
with   him.     Delivery   is  just  as  essential  to  | 
the  existence  of  a  bond,  note,  or  other  nego-  ' 
tiable  instrument  as  it  is  to  a  deed.     1  Dan- 
iel, Neg.  Inst.  §  Go  et  seq.;  Young  v.  Clarendon 
Tp.,  132  U.  S.  353,  10  Sup.  Ct  107.     Though  , 
they  had  beeu  prepared  and  signed,  they  were  / 
absolute  nullities   until   delivered,   and   they  I 
could  not  take  effect  as  bonds  until  an  au-  ' 
thorized  delivery.     When  prepared  and  sign-    ■ 
ed  by  the  county  judge  and  clerk,  and  sealed,  / 
the   power   of   these  officials   ceased.     They  ( 
could  not  perfect  them  by  delivery,  because 
the  statute  gave  them  no  such  power.     "What    i 
the  county  judge   then   did   was   to  dei>osit    / 
tliem  with  the  depositary  provided  under  the  | 
statute.     This  was  not  a  delivery,  and  the 
bonds  continued  imperfect  obligations  until  a 
delivery  which  could  only  be  made  by  the 
custodian  when  the  railroad  was  completed, 
The  power  to  perfect  them  as  bonds  arose 
only  when  the  condition  mentioned  had  been 
performed.     A    deliveiy   before    the   raih'oad 
was   begun   would   not   have  completed   the 
making  of  these  bonds,  for  the  power  was  to 


pany  \ 
resi-  J 


■i 


212 


MUNICIPAL    SECURITIES. 


deliver  them  when  it  was  finished,  and  the 
act  itself  provided  expressly  that  until  then 
the  bonds  should  not  be  valid,  thus  affirming 
the  imperfect  character  of  the  bonds  until  a 
delivery  was  lawfully  made.     Young  v.  Clar- 
endon Tp.,  cited  above.     The  imperfect  char- 
I  acter  of  the  bonds,  until  the  condition  preced- 
I  ent  had  been  performed,  is  further  made  man- 
'  ifest  by  the  direction  of  the  act  that  they 
I  should  "be  held  in  escrow  and  delivered  to 
the  said  railroad  company  when  it  shall  be- 
come entitled  to  them  by  the  construction  of 
[  its  road  through  such  county."     This  term, 
"in  escrow,"  is  one  strictly  applicable  to  deeds; 
and  a  direction  that  such  imperfect  obliga- 
'  tions,  executed  subject  to  conditions  and  re- 
strictions, by  a  maker  having  no  general  au- 
thority to  issue  such  paper,   should  be  held 
in  escrow,   implies  that  the  term  was  used 
just  as  it  would  be  used  if  the  subject-matter 
of  the  deposit  was  a  deed.     As  used,  the  teiTU 
implied  the  state  or  condition  of  a  deed  con- 
ditionally held  by  a  third  person,  to  be  de- 
livered and  to  take  effect  upon  the  happening 
of  a  condition.     Bouv.  Law  Diet;   Black,  Law 
Diet.    When  a  deed  is  delivered  as  an  escrow, 
nothing  passes  by  the  deed,  unless  the  condi- 
tion is  performed.     Calhoun  Co.  v.  American 
,  Emigrant  Co.,  03  U.  S.  124;    6  Am.  &  Eng. 
Enc.  Law,  867;  Taylor  v.  Craig,  2  J.  J.  Marsh, 
449. 

Counsel  have  very  ably  argued  that  a  dis- 
tinction exists  between  the  effect  of  a  deliv- 
ery in  violation  of  the  conditions,  where  the 
thing  in  escrow  was  negotiable  paper,  and 
has  come  to  the  hands  of  an  innocent  pur- 
chaser without  notice,  and  for  value.  1 
Daniel,  Neg.  Inst  §§  68,  855,  856;  Taylor  v. 
Craig,  2  J.  J.  Marsh,  449.  Possibly  such  dis- 
tinction is  sound,  though  if  the  purchaser 
bought  with  notice  that  the  paper  had  been 
held  in  escrow,  and  that  the  trustee  had  no 
power  to  deliver  until  a  condition  had  arisen, 
of  which  the  purchaser  likewise  had  notice, 
.  he  could  hardly  be  regarded  as  a  bona  fide 
I  holder.  Every  one  dealing  with  an  agent 
1  assumes  all  the  risk  of  a  lack  of  authority 
I  in  the  agent  to  do  what  he  does.  Negotia- 
I  ble  paper  is  no  more  protected  against  this 
inquii-y  than  any  other.  The  purchaser  of 
I  these  bonds  bought  with  notice  that  they 
'  had  been  held  in  escrow.  The  authority  of 
the  custodian  was  not  a  secret  Herein 
is  the  distinction  between  this  case  and  that 
class  of  cases  where  paper  is  fraudulently 
issued  by  an  agent  who  is  authorized  to 
make  and  issue  negotiable  paper  in  tlie  busi- 
ness of  his  principal,  and  the  question  wheth- 
er the  paper  issued  is  in  the  business  of  the 
principal  is  peculiarly  within  the  knowledge 
of  the  agent,  and  not  known  to  the  world  or 
a  stranger.  In  such  cases  the  agent  is  im- 
pliedly autliorized  to  represent  the  existence 
of  the  fact  upon  which  his  agency  depends. 
Farmers'  Nat.  Bank  v.  Sutton  Manuf'g  Co., 
6  U.  S.  App.  312.  332,  3  C.  C.  A.  1,  and  52 
Fed.  191.  It  is  difficult  to  see  why  one  who 
takes  such  bunds  as  those  in  suit  is  not  just 


as  much  obliged  to  look  to  the  authority  of 
the  trustee  to  deliver  as  if  the  subject  of  the 
escrow  had  been  a  deed.  We  are  to  remem- 
ber that  these  bonds  were  imperfect  obliga- 
tions, there  having  been  no  delivery  when 
placed  in  escrow.  The  question  first  pre- 
sented to  an  intending  buyer  is  this:  Have 
these  bonds  become  executed,  valid  obliga- 
tions by  delivery?  The  authority  of  this 
trustee  to  make  delivery  depended  upon  the 
same  principles  that  determine  such  author- 
ity in  other  contracts,  "and  is  not  aided  by 
the  doctrine  that,  when  once  lawfully  made, 
negotiable  paper  has  a  more  liberal  protec- 
tion than  other  contracts  in  the  hands  of  in- 
nocent holders."  The  Floyd  Acceptances, 
7  Wall.  666-680.  "The  authority  to  conti-act 
must  exist,  before  any  protection  as  an  in- 
nocent purchaser  can  be  claimed  by  the  hold- 
er." Marsh  v.  Fulton  Co.,  10  Wall.  683. 
But,  aside  from  any  distinction  between  the 
effect  of  a  wrongful  delivery  of  a  deed  and 
of  commercial  paper  upon  the  title  of  an  in- 
nocent purchaser,  it  seems  very  clear  that 
the  express  declaration  of  the  fourth  section 
of  the  act  that  these  bonds  should  not  be 
valid  obligations  until  the  railroad  had  been 
completed  through  the  county,  and  by  the 
further  provision  that  they  should  be  held 
in  escrow  until  that  event,  settles  conclusive- 
ly that  the  legislature  did  not  mean  that  the 
power  of  the  county  to  so  obligate  itself 
should  depend  upon  the  mere  opinion  of  the 
custodian,  but  upon  the  actual,  objective  ex- 
istence of  the  requisite  fact.  The  whole 
scope  and  tenor  of  the  act  leads  to  the  con- 
clusion that  the  legislature  intended  to  pro- 
tect the  county  against  any  misapplication 
of  these  bonds,  and  therefore  limited  its 
power  so  that  the  bonds  only  became  its  ob- 
ligations when  the  contract  between  the  rail- 
road company  and  the  county  should  become 
complete.  The  machinery  devised  indicates 
that  the  purpose  was  that  the  railroad  should 
not  part  with  its  stock  certificates  until  it 
had  received  payment  therefor.  And,  to 
secure  the  county  against  failure  to  complete 
the  road,  all  power  to  issue  bonds  was  made 
dependent  upon  its  actual  construction.  To 
secure  the  railroad  in  obtaining  the  bonds 
when  actually  earned,  it  was  provided  that 
when  a  favorable  vote  had  been  cast,  and  the 
subscription  made,  the  bonds  should  be  pre- 
l)ared  and  formally  executed,  and  placed  in 
the  hands  of  a  stakeholder,  to  be  delivered 
when  the  railroad  company  had  performed 
its  agreement.  To  secure  the  county  against 
the  possible  breach  of  duty  by  this  custo- 
dian, his  holding  was  to  be  in  escrow,  and 
his  power  to  deliver  withheld  until  the  actual 
performance  of  all  precedent  conditions.  To 
further  protect  the  coxmty  against  an  un- 
authorized delivery  of  the  bonds,  the  act, 
in  plain  terms,  provided  that  they  should  not 
be  valid  obligations  until  the  completion  of 
the  road.  That  the  custodian  was  required 
to  give  a  bond  for  the  due  discharge  of  his 
trust  by  no  means  implies  that  the  county 


ESTOPPEL  BY  COURSE  OF  DEALING  Oil  RECITALS  IN  BONDS.        213 


was  to  look  to  this  boud  in  case  of  an  un- 
authorized delivery.  The  bond  was  no  ni^re 
for  the  beuetit  of  one  party  than  the  other. 
A  wrongful  delivery,  or  a  fraudulent  use  of 
them,  might,  irrespective  of  a  defense,  if 
sued  upon  the  bonds,  involve  a  costly  litiga- 
tion. It  was  eminently  reasonable  that  the 
custodian  of  such  securities,  negotiable  in 
form,  should  give  security  to  protect  both 
parties  against  negligence,  conversion,  em- 
bezzlement, or  any  willful  refusal  to  faith- 
fully perform  the  trust. 

It  is  next  insisted  that  the  county  should 
be  held  responsible  upon  the  principle  that, 
whenever  one  of  two  innocent  persons  must 
suffer  by  the  acts  of  a  third,   he  who  has 
enabled  such  third  person  to   occasion  the 
loss    must    sustain    it.     This    principle    can 
have  no  application  here,  for  two  reasons: 
First,  the  holders  of  these  bonds  cannot  be 
I  regarded  as  innocent  purchasers,  inasmuch 
f  as  they  are  constructively  chargeable  with 
all  that  inquiry  would  have  disclosed;    and, 
second,  the  bonds,  as  bonds  of  a  municipal 
/  corporation,  are  invalid,  for  want  of  power 
I  to  issue  them  until  the  actual  completion  of 
1  the  railroad  in  whose  aid  they  were  author- 
^  ized.     Neither  are  the  bonds  validated   be- 
( cause  of  the  payment  of  interest  for  a  time 
I  after  their  issuance.     The  question  here  is 
not  one  of  mere  irregularity  in  the  method 
of  exercising   a   power.     The   defense   pre- 
sented  goes   to   the  power   of   the    county. 
(There  was  no  authority  to  issue  bonds   in 
aid  of  the  railroad  until  the  road  had  been 
constructed  through  the  county.     That  con- 


arty  ; 
I  the  / 
Vnll.  I 


dition  having  never  been  complied  with,  nei-  I 
iher  the  county  court  nor  the  county  judge  I 
could,  by  any  act  of  omission  or  commission, ' 
waive  its  performance.     Neither  could   the 
county  court  or  any  of  the  county  officials  ^ 
validate  them  by  subsequent  acts  of  ratifica-  J 
tion.     If  the  power  to  issue  them  did  not 
exist  when  they  were  issued,  no  payment  of  j 
interest,   or   resolution  to   adopt   them,   can  / 
operate  to  make  them  valid  contracts.     Rat- 
ilication  can  only  be  effective  when  the  party 
ratifying  possesses  the  power  to  perform 
act  ratified.     Marsh  v.  Fulton  Co.,  10  "Wall. 
G76-GS4;     Norton   v.    Shelby   Co.,    118   U.    S. 
420-451,   6   Sup.    Ct.    1121.     In  Doon   Tp.    v. 
Cummins,  142  U.  S.  3GG-37G,  12  Sup.  Ct.  220, 
the  court,  through  Mr.  Justice  Gray,   said: 
"A  ratification   can  have  no  greater   effect 
than  a  previous  authority,  and  debts  which 
neither  the  district  nor  its  officers  had  any 
power  to  authorize  or  create  cannot  be  rati- 
fied or  validated  by  either  of  them,  by  the 
payment  of  interest,  or  otherwise." 

That  the  county  still  holds  the  railroad 
stock  received  when  these  bonds  were  de- 
livered is  no  reason  for  holding  these  bonds 
valid.  By  proper  proceedings  the  railroad 
company  can  recover  this  stock,  or  compel 
payment  for  its  value.  Justice  would  de- 
mand the  return  of  the  stock,  or  compensa- 
tion for  its  value.  No  such  question  exists 
in  this  case.  Norton  v.  Shelby  Co.,  118  U. 
S.  454,  6  Sup.  Ct.  1121.  The  judgment  must 
be  reversed  and  remanded,  with  direction  to 
render  judgment  in  accordance  with  this 
opinion. 


214 


MUNICIPAL   CONTRACTS. 


STATE     (McDERMOTT,     Prosecutor)     v. 

BOARD     OF     STREET     &     WATER 

COM'RS  OF  JERSEY  CITY  et  al. 

(28  Atl.  424,  56  N.  J.  Law,  273.) 

Supreme  Court  of  New  Jersey.    Dec.  22,  1893. 

Certiorari,  at  the  suit  of  Allan  L.  McDer- 
mott,  against  the  board  of  street  and  water 
commissionei's  of  Jersey  City  and  others,  to 
review  certain  resolutions  and  proceedings 
of  defendant  board.     Reversed. 

Argued  November  term,  1893,  before  DIX- 
ON and  ABBETT,  JJ. 

Allan  L.  McDermott,  in  pro.  per.  Wil- 
liam D.  Edwards,  for  defendants. 

ABBETT,  J.  The  certiorari  in  this  case 
removed  into  this  court,  for  review,  certain 
resolutions  and  proceedings  awarding  con- 
tracts for  asphalt  paving  in  Jersey  City,  un- 
der proposals  received  by  the  board  of  street 
and  water  commissioners.  The  board  ad- 
vertised for  bids  for  laying  asphalt  pave- 
ment, to  be  paid  for  out  of  the  license  money 
collected  by  the  city,  as  provided  in  sections 
5  and  6  of  chapter  134  of  the  Laws  of  1891, 
(Laws  1891,  p.  259,)  and  further  provided 
for  in  chapter  82  of  the  Laws  of  1893,  (Laws 
1893,  p.  164.)  Bids  were  received  therefor 
from  the  Trinidad  Asphalt  Company  and  the 
Barber  Asphalt  Company.  The  work  would 
cost  $50,920  vmder  the  bid  of  the  Trinidad 
Asphalt  Company,  and  $41,982  under  the  bid 
of  the  Barber  Asphalt  Company.  The  board 
did  not  award  the  contract  to  either.  They 
divided  it,  giving  paving  to  the  highest  bid- 
der amounting  to  $32,805,  and  giving  the  low- 
est bidder  paving  amoiuiting  to  $13,878.  The 
preamble  to  the  resolution  awarding  portions 
of  the  Avork  to  each  company  declares  "that 
the  samples  [of  asphalt]  submitted  are  above 
the  standard  requirements,  and  this  board  has 
examined  into  the  financial  standing  of  both 
bidders,  and  finds  them  responsible;  and  as 
the  prices  bid,  covering  a  guaranty  of  ten 
years,  are  advantageous  to  the  city,  and  as  the 
cost  of  preparation  in  establishing  a  plant  to 
prepare  the  asphalt  for  street  laying  is  be- 
tween twelve  thousand  and  twenty  thousand 
dollars,  it  is  advisable  to  make  the  contract 
of  sutficiont  size  as  to  amount  of  work  to  jus- 
tify the  erection  of  a  plant;  and  as  the  laying 
of  asphalt  pavement  has  not  been  heretofore 
attempted  in  this  city,  and  as  the  money  to 
pay  for  the  work  on  which  bids  were  re- 
ceived is  payable  out  of  the  excise  moneys, 
and  not  by  assessment,  and  this  board  believ- 
ing it  to  be  for  the  best  interest  of  the  city 
to  divide  the  work  between  the  bidders  with 
a  view  of  comparison  of  their  work,  inas- 
much as  the  Barber  Asphalt  Paving  Com- 
pany has  had  the  gi-cater  experience  in  lay- 
ing the  pavement,  and  the  Trinidad  Asphalt 
Paving  Company  has  had  the  gi'cater  expe' 
rience  in  refining  the  product,  as  we  are  in- 
formed: Therefore,  resolved,"  etc.  The  reso« 
lution  was  presented  to  the  acting  mayor  on 
August  19,  1893,  and  became  operative  with- 


in 10  days  thereafter,  under  section  2  of  the 
supplement  to  the  city  charter,  approved 
March  24,  1873,  (Laws  1873,  p.  400,)  he  not 
having  vetoed  the  same.  He  did  not  formal- 
ly approve  the  same,  but  in  a  communication 
to  the  board,  dated  August  29,  1S93,  after 
giving  his  views,  states:  "I  have  decided  tc 
let  the  resolution  stand." 

Oiu"  opinion  is  that  under  the  city  charter 
this  improvement  was  one  that  was  to  be 
borne  by  the  city  at  large  and  paid  by  gen- 
eral tax,  and  that  the  proposed  work  can- 
not be  paid  for  by  assessment  for  benefits. 
Under  the  fifth  section  of  said  act  of  1891, 
the  board  has  power,  in  its  discretion,  to 
pave,  repair,  or  improve,  at  public  expense, 
any  part  of  any  street,  lane,  alley,  avenue, 
or  public  place  already  paved,  or  that  has 
been  paved,  to  be  paid  for  out  of  the  funds 
raised  by  the  issue  of  licenses  for  the  sale  of 
spirituous  or  malt  liquors  heretofore  appro- 
priated under  existing  laws  for  that  purpose 
in  such  city,  or  which  may  hereafter  be  ap- 
propriated for  that  purpose  in  any  such  city 
under  the  authority  conferred  by  this  act. 
There  is  a  contention  in  this  case  as  to  whether 
or  not  the  sections  of  the  charter  of  1871,  un- 
der the  title  "Board  of  Public  Works,"  which 
require  the  contract  for  paving  to  be  awarded 
"to  the  lowest  responsible  bidder,"  or  section 
159  of  the  charter,  under  the  heading  "Fi- 
nance," is  apphcable  to  this  case,  or  whether 
the  provisions  of  the  latter  section  modify  or 
affect  the  former  provision,  or  the  proper  con- 
struction thereof.  Section  159  provides  "that  j 
no  contract  for  work  or  materials  shall  be 
entered  into,  or  purchase  of  personal  prop-  I 
erty  be  made  by,  or  on  account  of  any  board 
or  department  of  the  city  government,  ex-  \ 
cept  after  due  advertisement,  for  six  days  at 
least,  in  the  official  newspapers;  whereupon  I 
the  contract  shall  be  awarded  to,  or  the  piu- 
chase  shall  be  made  of,  that  responsible  bid-  | 
der  who  offers  the  terms  most  advantageous 
to  the  city,"  etc.  In  deciding  this  case  it  is 
not  necessary  to  determine  which  of  these 
provisions  are  applicable,  or  whether  there  is 
any  legal  difference  between  the  "lowest  re- 
sponsible bidder"  and  "that  responsible  bid- 
der who  offers  the  terms  most  advantageous 
to  the  city,"  or  whether  the  board,  in  deter- 
muiing  who  is  a  "responsible  bidder,"  is  lim- 
ited to  the  question  of  financial  responsibil- 
ity, or  may  broaden  its  field  of  inquiry,  and 
exclude  a  bidder  whose  conduct  in  other  pub- 
lic work,  or  other  actions,  would  render  it  un- 
wise to  trust  him  to  carry  out  the  contract 
he  might  make.  The  board  did  not  act  un- 
der either  of  the  provisions  quoted.  It  did 
not  award  the  contract  to  either  the  lowest 
responsible  bidder  or  to  that  bidder  who  of- 
fered the  terms  most  advantageous  to  the 
city.  It  awarded  part  of  the  work  to  the 
highest  bidder,  and  part  to  the  lowest  bid- 
der. The  duty  imposed  upon  the  board  by  ' 
the  charter  was  to  determine  which  of  these 
bid(l<n's  on  tliis  work  came  within  the  words 
of  the  charter.     They  were  both  financially  / 


LETTING  OF  CONTRACT- TO  BIDDERS. 


215 


/  responsible,  they  both  submitted  samples  of 
/  asphalt  which  were  above  the  standard  re- 
/  quircmonts,  and  were  both  treated  as  bid- 
I  ders  who  in  good  faith  would  perform  their 
contracts  to  the  best  of  their  ability;  the  only 

(difference   between   the  two   being   that   the 
highest  bidder  had  the  greater  experience  ui 
laying  the  pavement,  and  the  lowest  bidder 
had   the  greater    experience  in   refining  the 
(product.     It   was   to   one  of   these   that   the 
charter  required  the  board  to  award  the  con- 
tract.    The  board  seeks  to  excuse  their  fail- 
t   lire  to  award  the  whole  of  the  work  to  either 
'    upon  the  gi-ound  that  they  believed  it  to  be 
r   for  the  best   interest   of  the  city   to   divide 
the  work  between  them  with  a  view  of  com- 
paring their  work.     The  answer  to  this  ae- 
I  tiou  is  that  no  such  power  is  conferred  upon 
this  board.     Its  power  is  limited  to  award- 
I  ing  the  contract  to  one  of  the  bidders;    and 
I  it  failed  to  perform  that  duty  when  it  divid- 
ed the  work  unequally,  according  to  its  dis- 
I  cretion,  between  the  highest  and  the  lowest 
I  bidders.       The    charter    having    limited    the 

I  power  of  the  board  as  to  the  bidder  to  whom 
the  contract  should  be  awarded,  and  as  to 
his  qualilications,  any  departm^e  therefrom  is 


illegal.     Cory  v.  Freeholders  of  Somerset,  44  j 
N.  J.  Law,  4.j5.  ' 

The  board  had  no  right  to  consider  any  re-  \ 
quircmonts  not  set  forth  in  the  statute  or  in  i 
the  specifications.     Shaw   v.   Trenton,  40  N,  / 
J.  Law.  343.  12  Atl  90-2.    If  the  board  could  not  ' 
determine  which  of  the  two  was  the  lowest 
responsiltle  bidder,  or  which  was  that  respon-  i 
sible  bidder  that  offered  the  terms  most  ad- 
vantageous to  the  city,  they  could  have  re-  ,' 
jected  both  bids,  and  have  readvortised  for 
the  work  imder  the  same,  or  clearer  or  more  i 
detailed,  specifications,  or,  if  there  were  two  ' 
classes  of  streets  requiring  different  kinds  of  i 
work  thereon,   they  could  have  divided  the  ' 
work,  and  have  asked  bids  on  the  different 
streets. 

The  prosecutor  is  a  taxpayer  of  Jersey  City,  \ 
and  has  a  right  to  question  the  legaUty   of  I 
this  action  of  the  board  of  street  and  water  / 
commissioners.     This  case  is  not  distinguish-, 
able  in  this  respect  from  Publishing  Co.  v. 
City  of  Jersey  City,  54  N.  J.  Law,  439,  24  Atl. 
571. 

The  action  of  the  board  in  dividing  the 
work  among  the  two  bidders  is  illegal  and 
void. 


216 


MUNICIPAL  CONTRACTS. 


REUTIXG  et  al.   v.  CITY  OF  TITUSVILLE 

et  al. 

(34  Atl.  916,  175  Pa,  St.  512.) 
Supreme  Court  of  Pennsylvania.     May  18,  1896. 

Appeal  from  court  of  common  pleas,  Craw- 
ford county. 

Bill  by  Theodore  W.  Reuting  and  others 
against  the  city  of  Titusville  aud  others  for 
injunction.  There  was  decree  for  defendants, 
and  plaintiffs  appeal.     Affirmed. 

"HEXDERSOX,  J.i  *  *  *  *  * 
/it  is  clear  from  all  the  evidence  that  the 
I  work  in  contemplation  is  the  repair  and  the- 
I  repaying  of  a  portion  of  a  street  which  had 
^  previously  been  paved.  It  is  not  a  case,  there- 
I  fore,  of  an  original  paving  improvement;  and 
the  owners  of  abutting  property  are  not  liable 
\to  a  compulsory  charge  therefor.  If,  however. 
Such  owners  choose  to  contribute  to  the  city 

/  the  principal  part  of  the  cost  of  making  the 

/  repairs,  taxpayers  not  living  upon  the  street 
have  no    ground    to    complain    that  'no  part 

'  thereof  should  be  paid  by  the  owners  of  abut- 
ting property.'  It  was  held  in  Com.  v.  Mitchell, 
82  Pa.  St.  S43,  that  the  word  'responsible,' 
I  in  the  act  of  the  23d  of  May.  1874,  means 
something  more  than  pecuniary  ability;    that 

,  the  duties  imposed  upon  the  officers  awai-ding 
a  contract  are  deliberative  and  discretionary. 
In  Douglass  v.  Com.,  108  Pa.  St.  559,  the  court 
said:  'The  act  of  23d  May,  1874,  directing  con- 
tracts to  be  awarded  to  the  "lowest  responsi- 
ble bidder,"  has  twice  been  before  us  for 
construction.     In  each  it  was  held  that   the 

V  word  "responsible,"  as  used  in  the  act,  applies 

]  not  to  pecuniary  ability  only,  but  also  to  judg- 
ment and  skill.     The  duties  thereby  imposed 

I  on  the  city  authorities  are  not  merely  minis- 
terial, limited  to  ascertaining  whose  bid  is  the 

/  lowest,  and  the  pecuniary  responsibility  of  the 
bidder  and  his  sureties;    the  act  calls  for  an 

''  exercise  of  duties  and  powers  which  are  de- 
liberate and  discretiouary.'  The  same  doc- 
trine is  reaffirmed  in  lutei-state  Vitrified  Brick 
&  Paving  Co.  v.  Philadelphia,  164  Pa.  St.  477, 
30  Atl.  383.  If  it  clearly  appears,  therefore, 
that  McDonald  was  a  lower  bidder  than 
Rouse,  in  the  absence  of  evidence  tending  to 
show  that  the  authorities  acted  in  bad  faith 
or  from  corrupt  motives,  they  might  award  the 
contract  to  a  liigher  bidder,  if  considerations 
of  superior  skill,  promptness,  or  etticiency  on 
the  part  of  such  bidder  lead  them  so  to  do. 

I     "The  objection  that  the  contract  was  enter- 

/  €d  into  by  the  committee  on  streets,  and  there- 

i  fore  mvalid,  is  not  well  taken.  Municipal 
corporations  act  through  agents.  When  the 
corporation  has  power  to  do  particular  work, 

I  it  may  authorize  its  agents  to  enter  into  con- 
tracts, and  such  contracts  will  be  binding  up- 
on the  corporation.  In  Hitchcock  v.  Galves- 
ton, 90  U.  S.  341,  it  was  held  Uiat  the  city  of 
Galveston  was  bound  by  the  terms  of  a  cou- 

i-  Part  of  the  opinion  is  omitted. 


tract  made  on  behalf  of  the  city  by  the  mayor 
and  chairman  of  the  committee  on  streets  and 
alleys,  who  had  been  authorized  and  directed 
by  ordinance  to  'enter  into  and  make  contract 
or  contracts  with  proper  and  responsible  par- 
ties to  fill  up,  grade,  curb,  and  pave  the  said 
sidewalks';  and  Mr.  Justice  Strong,  in  deliv- 
ering the  opinion  of  the  court,  said:  'K  the 
city  council  had  lawful  authority  to  construct 
sidewalks,  involved  in  it  is  the  right  to  direct 
the  mayor  and  the  chairman  of  the  committee 
on  streets  and  alleys  to  make  a  contract  on 
behalf  of  the  city  for  the  work.  We  spend 
no  time  in  vindicating  this  proposition.'  Dunn 
V.  Rector,  etc.,  14  Johns.  118;  Stoiy,  Ag.  §  4; 
Dickerson  v.  Peters,  71  Pa.  St.  53;  Tied. 
Mun.  Corp.  §  165;  Dill.  Mun.  Corp.  §§  132, 
374. 

"The  ordinance  and  the  resolution  of  July  \ 
19,  1895,  referring  the  bids  to  the  committee 
on  streets,  empowered  that  committee  to  en-  j 
ter  into  a  contract  for  the  completion  of  the  / 
work.    The  work  to  be  done  was  set  forth  in  ^ 
the  ordinance,  and  was  therefore  determined 
by  the  proper  city  authority.    The  committee, 
in  executing  the  contract,  acted  merely  as  the  / 
agent  of  the  city. 

"Under  the  evidence  in  this  case,  It  cannot    • 
be  said  that  the  contract  entered  into  by  the 
city  was  the  incurring  of  indebiedness  within    j 
the    meaning   of    the    constitutional   provision 
limiting  the  power  of  municipal  corporations 
to   contract  debts.     The  actual  liability   cre- 
ated is  very  small.     It  is  not  asserted   that 
the  contracts  of  the  owners  of  abutting  prop- 
erty for  the  payment  of  their  proportionate 
shares  of  the  cost  of  material  are  not  avail- 
able  to    the   city.     Through    these   contracts, 
the  city  secures  a  very  large  proportion  of  the 
cost  of  the  improvement,  the  whole  of  which 
will  probably  not  exceed  $1,600.     The  current  | 
revenues  of  the  city  are  largely  in  excess  of  I 
the  requirements  of  this  contract.     The  testi-  ' 
mony  is  not  contradicted  that  there  are  sever- 
al thousand  dollars  in  the  city  treasury  not 
needed  for  fixed  liabilities,  but  available  for 
any   lawful    undertakings   of   the    city.      The  | 
city  has  undoubted  authority  to  improve  the  I 
portion  of  the  streets  to  be  paved,  and  pay 
therefor  out  of  the  general  revenues  of  the 
city,  if  such  revenues  be  sufficient.     In  Ap-  ' 
peal  of  City  of  Erie,  91  Pa.  St.  398,  the  court 
quotes  with  approbation  Dill.  Mun.   Corp.  § 
88,  to  the  effect  that  when  a  contract  made 
by   a   municipal   corporation   pertains   to   its 
ordinary  expenses,  and  is,  together  with  oth- 
er like  expenses,  within  the  limit  of  its  cur- 
rent revenues,  and  such  special  taxes  as  it 
may  legally  and  in  good  faith  intend  to  levy 
therefor,   such  contract  does  not   constitute 
an    increasing    of    indebtedness    within    the 
meaning  of  the  constitutional  provision  limit- 
ing the  power  of  municipal  corporations  to 
contract  debts,  and  adds:    'This,  we  hesitate 
not  to  say,  is  a  sound  constitutional  inter- 
pretation, and,  in  a  similar  case,  might  well 
be  adopted  in  the  oousti-uction  of  our  own 


TO  LOWEST  BIDDER. 


217 


constitution.  If  the  contracts  and  obliga- 
tions of  a  municipal  corporation  do  not  over- 
reach their  curi'ent  revenues,  no  legal  ob- 
jection can  be  made  to  them,  no  matter  how 
great  the  indebtedness  of  such  municipality 
may  be;  for  in  such  case  their  engageiiifnts 
do  not  extend  beyond  their  present  means  of 
payment  and  so  no  debt  is  created.'  The 
contract  being  for  the  repair  of  a  portion  of  a 
street,  and  clearly  within  the  municipal  pow- 
er of  crealiuj,'  a  liability,  and  abundantly  cov- 
ered by  funds  in  the  city  treasury  available 
therefor,  no  reason  is  apparent  why  the  con- 
tract should  be  held  invalid  upon  the  theory 


that  it  creates  an  indebtedness  beyond  the 

constitutional  limit. •- 


Roger   Sherman,   for  appellants. 
Chase,  for  appellees. 


Geo.   A. 


PER  CURIAM.  The  reasons  for  sustaining 
the  action  of  the  defendants  in  awarding  the 
paving  contract  in  this  case  to  House  are  set 
forth  so  clearlj'  and  forcibly  in  the  opinion  of 
the  learned  court  below  that  we  affirm  the 
decree  on  that  opinion.    Decree  affirmed. 

2  Part  of  the  opinion  is  omitted. 


ai.8 


MUNICIPAL   CONTRACTS. 


FRAME  V.  FELIX  et  al. 

(31  Atl.  375,   167   Pa.   St.  47.) 

Supreme    Court  of   Pennsylvania.      March    18, 
1895. 

Appeal  from  court  of  common  pleas,  Berks 
county;   G.  A.  Endlich,  Judge. 

Action  by  A.  Lincoln  Frame  against  George 
H.  Felix,  Matthan  Harbster,  Franli  A.  Tyson, 
and  Frederick  P.  Heller,  commissioners  of  the 
water  department  of  the  city  of  Reading,  How- 
ard E.  Ahrens,  and  the  city  of  Reading,  for  an 
injunction.  From  a  judgment  for  plaintiff,  de- 
fendants appeal.     Affirmed. 

"ENDLICH,  j.i        *        *       •       »       ♦        • 
I     "3.  The  provision  that  contracts  for  munic- 
( Ipal  work  shall  be  given  to  the  lowest  re- 
'  sponsible   bidder  does   not  have   sole   refer- 
'  ence    to    tlie    mere    pecuniary    ability    of    the 
contractor,  but  involves  a  discretion  on  the 
I  part  of  the  municipal  authorities  in  the  se- 
I  lection  of  the  agency  best  fitted  for  the  per- 
'  formance  of  the  work,  etc.,  required.    Com. 
V.  Mitchell,  82  Pa.  St.  343;    Findley  v.  City 
of   Pittsburgh.    Id.   351;    Douglass  v.   Com., 
108  Pa.   St.  5.59;    Intei-state  Vitrified  Brick, 
etc.,    Co.   V.   City  of   Philadelphia,    164    Pa. 
Sf.    477,   30   Atl.    383.     But,   that   discretion 
being  granted,  the  purpose  of  the  provision, 
Mhich    'was   based   upon   motive   of   public 
I  economy,   and  originated,    perhaps,    in  some 
degree  of  distrust  of  the  officers  to   whom 
the  duty   of  making  contracts  for  the  pub- 
lic service  was  committed'    (Brady  v.  Mayor, 
etc.,  20  N.  Y.  312,  per  Denio,  J.,  at  page  316), 
I  clearly  was  'to  secure  to  the  city  the  ben- 
:  efit    and   advantage  of   fair  and   just   com- 
petition  between   bidders,   and  at  the  same 
time  close,  as  far  as  possible,  every  avenue 
to  favoritism  and  fraud  in  its  varied  forms' 
(INIazet   V.    Pittsburgh,    137   Pa.    St.    548,    20 
Atl.   093,   per  Sterrett,  J.,   at  pages  501,  262, 
137  Pa.  St.,  and  page  093,  20  Atl.),  and  to 
insure  'the  accomplishment  of  the  work  at 
I  the  lowest  price  by  subjecting  the  contract 
for  it  to  public  competition'  (In  re  Mahan. 
20   Hun,   301,   per  Brady,   J.,   at  page   302^. 
In    order   to    effectuate   this    purpose.    It   Is 
manifest  that,  where  something  is  to  be  done 
that    is    required    to    be    submitted    to    com- 
petition, every  essential  part  of  it  that  goes 
to  make  up  the  whole  of  it  must  be  sub- 
mitted to  such  comi)etition.    In  re  Paine,  26' 
Hun,  431.     If  any  one  essential  part  can  be 
withdrawn  from  competition,  so  may  others; 
and  in  the  end  it  will  be  found  that  con- 
tracts  will   be  let  to  the  lowest  bidder  ou 
some  single  trifling  element,  while  as  to  all 
Important  items  there  'las  been  no  competi- 
tion at  all.     Such  was,   indeed,  the  case  in 
Brady   v.   Mayor,   etc.,    supra.     Upon   items 
making  up  seven-eighths  of  the  expense  of 
the  work  to  be  done  no  bids  were  asked;  but 
a   pretense  of  compliance   with   the   statute 
was  made  by  awarding  the  contract  to  the 
lowest  bidder,  upon  the  items  making  up  the 

1  Part  of  the  opinion  is  omitted. 


remaining  one-eighth  of  the  entire  expense. 
This  was  held  clearly  a  violation  of  the  law. 
Nor  can  it  make  any  difference  in  principle- \ 
whether  items  be  withdrawn  from  competi- 
tion by  permitting  (as  in  Brady  v.  Mayor, 
etc.,  supra)  the  contractor  to  charge  for  them 
as  he  pleased,  or  by  stating  in  advance  what 
will  be  allowed  for  the  same.  Thus,  in  Re 
Mahan,  supra,  it  was  held  that  when  the 
statute  requires  a  public  officer  to  advertise 
for  bids  for  work  to  be  perfomied,  with  a 
view  to  awarding  the  contract  to  the  lowest 
bidder,  he  cannot  lawfully,  in  such  adver- 
tisement, fix  an  arbitrary  price  to  be  paid  for 
certain  specified  kinds  of  work,  included  in 
that  for  which  the  bids  are  asked;  e.  g.,  in 
advertising  for  bids  for  the  consti-uction  of 
a  sewer,  he  cannot  fix  ^4  per  cubic  yard  as 
the  price  to  be  paid  by  the  municipality  for 
all  rock  excavation.  'If,'  says  Brady,  J.,  'the 
items  of  rock  excavation  may  be  omitted 
from  the  contract  to  be  made  by  arbitrarily 
stating  an  allowance  for  it,  the  same  coui'se 
may  be  pursued  as  to  the  other  items,  and 
the  advertisement  made,  therefore,  to  cover 
a  fcAV  only  of  the  items  constituting  the 
whole  work  to  be  done.'  Accordingly,  a 
contract  made  upon  the  basis  of  such  an 
advertisement,  axid  embodying  its  objection- 
able feature,  was  declared  to  be  illegal.  The 
principle  of  this  decision,  affirmed  on  ap- 
peal in  81  N.  Y.  621,  was  followed  under 
similar  conditions  in  Re  Mauger,  23  Hun, 
658;  Re  Manhattan  Sav.  Inst.,  82  N.  Y.  142; 
Re  Merriam,  84  N.  Y.  596;  Re  Metropolitan 
Gaslight  Co.,  85  N.  Y.  528;  Re  Paine,  20 
Hun,  431.  The  fact  tliat  the  assessments  laid 
to  pay  the  amounts  accruing  to  the  con- 
tractor upon  such  contracts  were  in  the  ear- 
lier cases  vacated,  in  the  later  simply  re- 
duced, is  irrelevant  here;  the  reason  for  the 
adoption  of  the  latter  rule,  obviously  jus- 
tified where  the  work  had  been  done,  and 
the  application  was  to  avoid  contribution  on 
the  part  of  property  holders  benefited  to  its 
expense,  being,  together  with  the  rule  itself, 
inapplicable  here.  It  seems,  therefore,  to 
be  beyond  question  that,  under  a  provision 
requiring  the  submission  of  contracts  for 
municipal  work  to  competitive  bidding,  and 
the  awarding  of  them  to  the  lowest  responsi- 
ble bidder,  it  is  not  lawful  to  fix,  in  the 
specifications,  on  the  basis  of  which  the  pro- 
posals are  invited,  any  arbitrary  sum  to  be 
paid  for  any  part  or  item  of  the  work  to  be 
done;  and  that  the  fixing  of  such  a  sum  for 
any  part  or  item  of  such  work  renders  illegal 
the  entire  proceeding  and  the  contract  to 
which  it  may  lead.  Nor  is  it  material  wheth- 
er the  sum  so  fixed  be  or  be  not,  in  point  of 
fact,  in  excess  of  what  it  is  likely  that  the 
competition  among  the  bidders  would  have 
made  it.  Says  Brady,  J.,  in  ice  Mahan,  su- 
pra: 'In  the  consideration  of  this  case  it  was 
thought  that,  inasmuch  as  it  aid  not  appear 
that  the  price  allowed  for  rock  excavation 
by  the  commissioner  of  public  works  was  in 
excess  of  what  would  have  been  demanded 
by   any   contractor,   the   petitioner   did   not 


TO  LOWEST  BIDDER. 


219 


sustain  any  injui*y  by  the  omission  mention- 
ed, and  was  not  aggrieved,  tlierofore,  by  any 
substantial  error.  But  rellection  upon  tliat 
tlieory  has  led  to  the  conviction  that  that  is 
not  enough  to  override  the  plain  terms  of 
the  statute.'  Manifestly  this  must  be  so. 
If  not,  the  requirement  to  submit  public 
work  to  competitive  bidding  could  be  prac- 
tically disregarded  by  municipal  officers 
whenever  they  might  feel  disposed  to  take 
the  chance  of  being  stopped  by  the  taxpay- 
ers, and,  in  case  they  should  be,  of  finding 
the  ways  and  means  of  proving  that  the  ex- 
penditure was  not  in  excess  of  what  it 
would  probably  have  been  had  they  obeyed 
the  statute.  Such  a  condition  of  the  law 
would  be  simply  intolei-able,  and  cannot  for 
one  moment  be  thought  of  as  a  possible 
thing. 

"Now,  the  difficulty  with  the  specilications 
and  proposed  contract  in  this  case  is  that 
the  former  undertake  to  fix  arbitrarily  and 
in  advance  the  price  of  one  of  the  important 
elements  entering  into  the  expense  of  the 
work  to  be  done  thereunder,  by  the  stipula- 
tion that  the  contractor  shall  pay  to  the 
persons  employed  by  him  in  the  perfoi'mance 
of  the  contract  not  less  than  $1.50  per  day 
as  wages.  I  am  not  going  to  decide,  be- 
cause, as  I  have  shown,  it  is  imnecessary 
to  decide,  whether  or  how  much  that  is  in 
excess  of  average  wages  paid  to  persons  em- 
ployed in  the  kind  of  work  contemplated  in 
these  specifications  and  this  proposed  con- 
tract. The  evidence  offered  by  plaintiff  up- 
on this  subject  might,  when  objected  to, 
have  been  excluded,  which  would  have  pre- 
vented any  counter  evidence  by  defendants 
on  the  subject.  For  that  reason  I  have 
marked  as  refused  the  plaintiff's  sixth  re- 
quest for  findings  of  fact  and  his  second 
request  for  findings  of  law.  All  that  I  am 
bound  to  say  or  that  is  proper  for  me  to 
say  is  that,  by  attempting  to  fix  in  the  spec- 
ifications, on  the  basis  of  which  proposals 
were  invited,  the  minimum  rate  of  wages  to 
be  paid  by  the  contractor,  the  water  board 
has  withdrawn  from  possible  competition 
one  of  the  essential  elements  of  the  work, 
every  part  of  which  it  was  required  to  sub- 
mit to  competition,  and  that  thei'eby  its  in- 
vitation of  proposals  for  the  remainder  of 
the  work,  its  award  of  the  contract  therefor, 
and  the  proposed  execution  of  said  contract 
have  been  rendered  illegal  as  in  contraven- 
\  tion  of  the  mandate  of  the  statute. 

"It  may,  in  view  of  prevailing  conditions, 
be  imfoi-tunate  that  the  ease  befori>  jhl'  has 
arisen  at  this  time,  and  it  may  be,  as  urged 
at  the  hearing,  that  the  plaintiff's  motives 
for  bringing  it  here,  beyond  these  disclosed 
by  the  record,  were  not  the  most  commenda- 
ble. But,  the  case  being  here,  every  ques- 
tion necessarily  to  be  passed  upon  in  its  de- 
cision is,  of  course,  to  be  determined  upon 
recognized  legal  principles,  and  upon  no  oth- 
er consideration;  and  with  the  plaintiff's 
hidden  motives  the  court  has  nothing  to  do. 
Mazet  V.   City  of  Pittsburgh,   137  Pa.   548, 


20  Atl.  G93.  It  is,  moreover,  to  say  the 
least,  extremity  doubtful,  and  from  what 
was  said  upon  the  argument  it  would  hard- 
ly seem  to  be  supposed  by  any  one,  that 
the  fixing  of  a  minimum  rate  of  wages  to 
be  paid  to  laboring  men  in  the  performance 
of  municipal  contracts  ever  does  put  into  the 
pockets  of  a  single  one  of  them  employed 
by  the  contractors  one  penny  more  than  what 
his  labor  would  at  the  time  command  in  the 
community.  The  wages  of  labor  are  not  con- 
trollable in  that  way.  If  the  average  wages 
paid  for  labor  of  the  kind  required  are  equal 
to  the  rate  thus  prescribed,  such  a  stipula- 
tion is  an  entirely  nugatory  one.  If  the  aver- 
age is  less,  the  contractor,  whoever  he  may 
be,  will  ordinarily  pay  just  what  the  average 
is,  and  nothing  more.  In  either  event  the 
laboring  man  will  be  none  the  better  off 
because  of  such  a  stipulation,  unless  it  be 
enforceable  under  a  valid  contract  But  I 
am  not  now  deciding,  because  it  is  not  be- 
fore me,  that  every  contract  between  a 
municipality  and  a  contractor  containing  a 
stipulation  as  to  the  minimum  rate  of  wages 
to  be  paid  by  the  latter  is  necessarily  void, 
or  that  such  a  stipulation  in  any  such  con- 
tract is  unenforceable.  Nor,  for  the  same 
reason,  am  I  deciding  anything  as  to  the 
right  of  the  city  or  any  department  to  fix 
the  wages  to  be  paid  to  laboring  men  em- 
ployed directly  by  it.  I  am  dealing  here  on- 
ly with  the  question  of  its  right  to  prescribe 
in  its  specifications  and  invitation  for  bids 
the  rate  of  wages  to  be  paid  by  others  in 
the  pei'formance  of  such  works  as  it  is  re- 
quired by  law  to  throw  open  to  competitive 
bidding  and  to  award  to  the  lowest  bidder, 
and  with  the  question  of  the  legality  of  a 
contract  to  be  made,  in  the  face  of  such  a 
requirement,  upon  the  basis  of  specifications 
so  framed  and  conditioned  in  advance  of  the 
bidding  and  awarding  of  the  contract.  Nei- 
ther am  I  passing  upon  the  city's  right,  in 
such  work  and  such  contract,  to  require  the 
employment  of  American  citizens  only,  and 
to  insist  upon  the  same,— a  question  which 
is  not  material  to  the  decision  of  this  case; 
and  I  repeat  that  I  am  not  deciding  that 
the  average  rate  of  wages  in  this  city  is 
or  is  not  $1.50  per  day,  or  that  the  labor 
required  in  the  performance  of  the  work  con- 
templated by  the  proposed  contract  could  or 
ought  to  be  obtained  at  a  less  rate  of  wages. 
I  am  simply  deciding  that  in  asking  for  pro- 
posals as  to  that  work,  and  in  framing  its 
specifications  therefor  as  the  basis  of  such 
proposals,  the  water  board  had  no  right  to 
fix,  in  advance,  any  rate  of  wages  to  be  paid 
by  the  contractor,  whether  it  be  too  high  or 
too  low,  and  that,  therefore,  its  past  and  in- 
tendc<l  action  in  the  premises  cannot  be  sus- 
tained. 

"Counsel  may  prepare  and  submit  the  prop- 
er decree  to  be  entered  in  this  case  in  ac- 
cordance with  the  foregoing  decisions." 

William  J.  Rourke.  City  Sol.,  for  appel- 
lants. Stevens  &  Stevens  and  Cyrus  G. 
Derr,  for  appellee. 


220 


MUNICIPAL   CONTRACTS. 


PER  CURIAM.  The  important  question 
in  this  case  is  raised  upon  the  specifications 
forming  part  of  the  proposed  contract  for 
the  new  inlet  and  pumping  station  about  to 
be  built  by  the  water  department  of  the 
city  of  Reading.  These  specifications  require 
the  contractor  to  employ  no  one  not  a  citizen 
of  the  United  States,  and  to  pay  no  man  a 
less  sura  for  his  labor  than  !fl..jO  per  day. 
The  point  made  by  the  plaiutitf  is  that  such 
specifications  are  not  consistent  with  the 
provisions    of    Act    May    23,    1SS9,    art.    4, 


§  6,  which  require  that  such  work  shall  be 
let  to  the  lowest  responsible  bidder.  The 
learned  judge  of  the  court  below,  in  his  find- 
ings of  law  marked  "(a),"  "(b),"  "(c),"  and 
"(d),"  lias  sustamed  the  contention  of  the 
plaintiff  and  fully  vindirated  his  decree. 
We  aflirm  it  for  the  reasons  so  clearly  stated 
in  these  findings.  The  question  discussed  in 
the  remainder  of  the  opinion,  affecting  the 
organization  of  the  water  department  de- 
fendant, is  not  raised  by  the  assignments  of 
error,  and  we  express  no  opinion  upon  it. 


AUTHORITY  OF  MUNICIPAL  OFFICERS  TO  CONTRACT. 


221 


t/c( 


COLUMBUS  WATER  CO.  v.  MAYOR,  ETC., 
OF  CITY  OF  COLUMBUS. 

(28  Pac.  1097,  48  Kan.  99.) 

Supreme  Court  of  Kansas.     Feb.  6,  1892. 

Original  proceedings  in  mandamus  by  the 
Columbus  Water  Company  against  the  mayor 
and  council  of  the  city  of  Columbus  to  com- 
pel the  levy  of  a  tax  to  pay  a  hydrant  rental. 
Demurrer  to  the  petition  overrvded. 

John  N.  Ritter,  for  plaintiff.  J.  D.  McOev- 
erty,  for  defendants. 

GREEN,  C.  This  is  an  original  action  in 
mandamus,  brought  by  the  Columbus  Water- 
Works  Company  against  the  city  of  Colum- 
bus, its  officers,  and  others,  to  compel  the 
levy  of  a  tax  upon  all  of  the  taxable  property 
in  the  city  to  pay  the  hydrant  rental  upon  50 
hydrants  for  the  year  1892,  and  for  an  order 
directing  the  city  clerli  to  certify  the  same  to 
the  county  clork  for  the  county  clerk  to  place 
such  tax  upon  the  tax-rolls  of  the  county,  and 
for  the  county  treasurer  to  collect  such  tax, 
and  pay  it  over  to  the  city  treasurer  for  the 
use  of  the  plaintiff.  The  same  parties  were 
before  this  court  to  have  the  hydrant  rental 
levied  for  the  year  1891.  The  agreed  state- 
ment of  facts  and  the  proceedings  in  that 
case  are  made  a  part  of  the  plaintiff's  petition 
in  this  case.  The  facts  being  substantially 
the  same  as  in  that  case,  reference  is  made 
to  that  case  for  a  full  statement  of  all  the 
facts.  See  Columbus  Water-Works  Co.  v. 
City  of  Columbus,  46  Kan.  606,  26  Pac.  1046. 
Smce  the  decision  in  that  case  the  city  of 
Columbus  has  notified  the  water-works  com- 
pany that  it  would  not  receive  and  pay  for 
water,  upon  the  terms  heretofore  charged, 
after  the  15th  day  of  August,  1891,  and  gave 
notice  to  its  fire  department  to  no  longer  use 
water  from  the  public  hydrants  of  the  com- 
pany after  said  date.  The  water  company 
notified  the  city  that  it  would  continue  to 
furnish  water  in  accordance  with  the  ordi- 
nance passed  on  the  23d  day  of  March,  1887. 
The  city  refused  to  make  any  provision  for 
the  future  payment  of  hydrant  rentals.  To 
the  petition  of  the  water  company  the  city 
has  interposed  a  general  demurrer. 

To  reach  a  decision  in  this  case  the  defend- 
ant has  waived  the  question  as  to  whether 
the  action  of  mandamus  is  the  proper  remedy 
or  not.  The  defendant  now  insists  that  a 
city  of  the  second  class  cannot  create  a  con- 
tinuing liability  covering,  as  in  this  case,  a 
period  of  21  years,  under  an  exclusive  fran- 
chise for  99  years.  The  authority  of  a  city 
of  the  second  class  to  make  provision  to  fur- 
nish water  to  its  inhabitants  and  for  fire  pro- 
tection has  been  settled  in  this  state;  and  a 
city  has  the  authority  to  grant  a  franchise  to 
a  person  or  corporation  to  establish  water- 
works, and  is  empowered  to  rent  hydrants 
from  such  person  or  corporation.  Gen.  St. 
pars.  787,  817,  1401,  1402.  718." -7190;  Wood 
v.  Water  Co.,  33  Kan.  590,  7  Pac.  233;  Bur- 


lington Water-Works  Co.  v.  City  of  Burling- 
ton, 43  Kan.  725,  23  Pac.  1008;  Columbus  Wa- 
ter Co.  v.  City  of  Columbus,  46  Kan.  666,  26 
Pac.  1016;    Manley  v.  Emlen,  46  Kan.  650,  27 
Pac.  844;    Dill.  Mun.  Corp.  (4th  Ed.)  §§  146, 
443,  and  note  to  section  568;    15  Am.  &  Eug. 
Enc.  Law,  1115,  1118,  and  cases  there  cited. 
But  it  is  urged  that  a  contract  extending  over  / 
a  period  of  21  years  cannot  be  enforced,  be-  . 
cause  the  officers  of  the  municipality  had  no 
authority  to  bind  their  successors  for  such  a  / 
length  of  time;   that  section  2  of  the  bill  of 
rights,  which  provides  "that  no  special  priv-  ; 
ileges  or  immunities  shall  ever  be  granted  by 
the  legislature  which  may  not  be  altered,  re-  / 
voked,  or  repealed  by  the  same  body,"  is  an 
inhibition  against  any  such  power.     The  lead-  i 
ing  cases  upon  this  question  are  in  conflict  as  j 
to  whether  such  a  contract  as  the  plaintiff  I 
sets  out  in  its  petition  creates  a  monopoly  or 
not.     The  question  has  frequently  arisen  be- 
tween rival  light  and  water  companies;  so'me- 
times  by  corporations  against  cities  for  the 
hydrant  rentals,   when  the  latter  continued 
to  use  the  water  for  fire  purposes.     In  this 
case  the  city  has  attempted  to  cease  using 
the  water  for  any  public  puriwse,   and  thus 
relieve  itself  from  all  liability  on  the  contract 
previously  entered  into  to  pay  a  rental  of 
$3,000  a  year  for  the  use  of  50  hydrants.    The 
question  before  us  has  received  the  attention 
of  the  courts  of  last  resort,  both  federal  and 
state,  of  late  years,  and  it  is  somewhat  diffi- 
cult to  reconcile  the  different  decisions.     The 
supreme  court  of  the  United  States  has  held 
"that  a  gas  company,  incorporated  in  1835, 
with  the  exclusive  privilege  of  making  and 
seUing  gas   in  New  Orleans,   its  fauboiu-gs, 
and  La  Fayette,  up  to  April  1,  1875,  could, 
under  an  act  of  the  legislature,  consolidate  with 
another    company;     and    that    a    legislative 
grant  of  an  exclusive  right  to  supply  gas  to  a 
municipality    and    its    inhabitants    through 
pipes  and  mains  laid  in  the  public  streets, 
and    uix)n    condition    of    the    performance    of 
the  service  of   the  grantee*,   is  a   grant   of  a 
franchise   vested   in   the   state,    in    considera- 
tion of  the  performance  of  a  public  service, 
and,  after  performance  by  the  grantee,  is  a 
contract  protected  by  the  constitution  of  the 
United  States  against  state  legislation  to  im- 
pair it."    In  granting  the  exclusive  franchise 
to  a  municipality  a  state  does  not  part  with 
the  police  power  and  duty  of  protecting  the 
public  health,  the  public  morals,  and  public 
safety,  as  one  or  the  other  may  be  affected  by 
the  exercise  of  that  franchise  by  the  grantee. 
The  prohibition  in  the  constitution  of  the 
United  States  against   the  passage  of  laws 
impairing  the  obligation  of  contracts  applies 
to  the  constitution  as  well  as  the  laws  of  each 
state.     New   Orleans   Gas   Co.   v.   Louisiana 
Light,  etc.,  Co.,  115  U.  S.  650,  6  Sup.  Ct.  252; 
Water  Co.  v.  Rivers,  115  U.  S.  674,  6  Sup.  Ct. 
273;   Louisville  Gas  Co.  v.  Citizens'  Gas  Co., 
115  U.  S.  683,  6  Sup.  Ct  2<>5;    St.  Tammany 
Water-Works  v.  New  Orleans  Water-Works, 
120  U.  S.  64,  7  Sup.  Ct.  405. 


222 


MUNICIPAL   CONTRACTS. 


In  Des  Moines  St.  R.  Co.  v.  Des  Moines  B. 
G.  St.  Ry.  Co.,  73  Iowa,  513,  33  N.  W.  610, 
and  35  N,  W.  602,  the  city  had  had  the  au- 
thority to  grant  or  prohibit  the  laying  down  of 
street-car  trades  within  its  limits.  The  court 
held  that,  although  there  was  no  grant  of 
power  in  express  terms  authorizing  the  coun- 
cil to  confer  an  exclusive  privilege  in  the  use 
of  streets,  under  the  circumstances  of  the 
case,  and  to  procure  a  better  public  service, 
the  council  could  grant  a  valid  exclusive 
right  for  the  limited  period  of  25  years,  such 
contract  being  necessary  to  secure  the  serv- 
ice which  it  might  not  otherwise  be  able  to 
obtain.  The  court  also  decided  that  the  con- 
stitutional restriction  which  declared  that  no 
exclusive  privileges  should  be  granted,  except 
as  provided  for  in  the  constitution,  did  not 
apply  to  the  grant  by  a  city  to  a  pei"son  or 
company  of  the  exclusive  right  to  build  and 
operate  street  railways. 

In  the  case  of  City  of  Newport  v.  Newport 
Light  Co.,  8  Ky.  Law  Rep.  22,  it  was  held 
that  when  a  municipal  corporation  has  the 
power,  express  or  implied,  to  contract  witJbi 
others  to  furnish  its  inhabitants  with  the 
means  of  obtaining  gas  at  their  own  expense, 
it  has  the  power  to  malie  a  contract  grant- 
ing to  a  corporation  the  exclusive  right  to 
the  use  of  its  streets  for  that  purpose  for  a 
term  of  years.  The  charter  of  the  city  did 
not.  in  express  terms,  give  the  power  to  the 
city  to  grant  an  exclusive  privilege.  The 
court  rested  its  opinion  upon  the  following 
gi-ounds:  First,  that  the  power  given  the 
municipality  to  provide  for  lighting  the  city 
included  the  power  to  grant  the  exclusive 
right  to  the  use  of  the  streets  for  that  pur- 
pose; and,  secondly,  that  the  Newport  Light 
Company  was  invested,  in  express  terms,  by 
a  provision  contained  in  the  charter,  with 
the  right  to  furnish  any  city,  town,  district, 
or  coi-poration  or  locality,  or  any  public  insti- 
tution, etc.,  on  such  terms  as  may  be  agreed 
upon.  The  same  court  has  held  in  a  more 
recent  case  that?  where  a  party  contracts 
with  a  city  for  the  exclusive  right  to  remove 
the  carcasses  of  dead  animals  therefrom,  and 
to  use  its  public  streets  for  this  purpose,  the 
law  will  protect  him  in  his  monopoly,  and  the 
work  cannot  be  engaged  in  by  others  as  a 
general  business  enterprise.  City  of  Louis- 
ville V.  Wible,  84  Ky.  290,  3^  S.  W.  605. 

In  New  Jersey,  a  contract  was  entered  into 
by  Atlantic  City  with  the  Atlantic  City  Wa- 
ter-Worlis  Company  for  a  supply  of  water, 
calling  for  a  certain  annual  payment,  with- 
out any  limit  as  to  time,  except  that  the  city 
miglit  take  the  water-works  at  a  valuation; 
and  it  was  held  that  such  a  contract  was  legal 
and  binding  on  the  city.  Atlantic  City  Wa- 
ter-Works Co.  V.  Atlantic  City,  48  N.  J.  Law, 
378,  6  Atl.  24.  Subsequently  it  was  held  by 
the  court  of  chancery  of  New  Jersey  that  by 
an  amendment  made  to  the  constitution  in 
1875,  which  declared  that  "the  legislature 
shall  not  pass  private,  local,  or  special  laws 
granting  to  any  corporation,  association,  or 


individual  any  exclusive  privileges,  immuni- 
ty, or  franchise  whatever,"  the  exclusive 
right  could  not  be  granted  to  a  water  com- 
pany to  use  the  streets  of  a  city.  Atlantic 
City  Water-Works  Co.  v.  Consumers'  Water 
Co.,  44  N.  J.  E(i.  427,  15  Atl.  5S1. 

In  Tennessee,  it  has  been  held  that  the 
granting  of  the  privilege  by  a  municipal  cor- 
poration, by  legislative  enactment,  to  a  pri- 
vate corporation,  for  its  exclusive  use,  for  a 
term  of  years,  is  not  unconstitutional,  and, 
having  been  granted,  is,  during  the  tenn  of  a 
contract,  beyond  the  reach  of  subsequent  leg- 
islative interference.  It  was  decided  that, 
notwithstanding  the  constitution  forbids  per- 
petuities and  m,onopolies,  an  exclusive  priv- 
ilege to  a  city  to  erect  water-works  was  not 
a  monopoly,  and  that  granting  an  exclusive 
privilege  for  a  terms  of  years  to  a  private 
corporation  did  not  render  it  a  monopoly. 
City  of  Memphis  v,  Memphis  Water  Co.,  5 
Heisk.  495. 

The  supreme  court  of  Wisconsin  has  de- 
cided that  the  legislature  could  confer  upon 
a  private  corporation  the  exclusive  right  to 
manufacture  and  sell  gas,  and  to  erect  works 
and  lay  pipes  therefor  within  the  limits  of 
the  corporation.  State  v.  Milwaukee  Gas- 
Light  Co.,  29  Wis.  454.  There  seemed  to  be 
no  constitutional  limitation  when  this  case 
was  decided,  and  the  court  expressly  held 
that  the  legislature  might  create  a  monopoly. 

The  supreme  court  of  Connecticut,  in  the 
case  of  Citizens'  Water  Co.  of  Bridgeport  v. 
Bridgeport  Hydraulic  Co.,  55  Conn.  1,  10  Atl. 
170,  where  the  city  council  of  Bridgeport  had 
accepted  a  proposition  from  a  party  to  supply 
the  city  with  water,  and  granted  him,  with 
the  power  of  assignment,  the  exclusive  right 
to  lay  pipes  in  the  streets  so  long  as  a  full 
supply  of  pure  water  should  be  furnished,  and 
the  Bridgeport  Hydraulic  Company  acquired 
such  right  by  assignment,  and  expended  large 
sums  of  money  in  establishing  water-works, 
held  that,  so  long  as  this  company  supplied 
the  city  with  an  abundance  of  water,  the  leg- 
islature had  no  power  to  give  another  corpo- 
ration the  right  to  lay  pipes  in  the  streets  of 
the  city  for  the  purpose  of  supplying  the  city 
with  water.  The  court  said  "that  it  was  the 
duty  of  the  court  to  preserve  contracts  invio- 
late, rather  than  to  destroy  monopolies.  The 
legislature  having  in  effect  authorized  the  city 
to  make  a  contract  which  it  desired  to  make, 
will  not — cannot— now  relieve  it.  Although 
the  state  is  no  party  to,  and  has  no  interest 
whatever  in,  the  subject-matter  of  a  contract, 
if  it  volunteers  to  invest  a  creature  of  its  own, 
otherwise  powerless,  with  power  to  make  it, 
the  legislature  is  thereafter  concluded  in  ref- 
erence to  it.  It  is  a  lawful  contract  between 
two  natural  persons  of  full  legal  capacity  sa- 
cred from  any  interference  other  than  ju- 
dicial construction." 

The  court  of  appeals  of  New  York  has  decid- 
ed squarely  against  this  (doctrine.  Under  a 
law  passed  in  1SC.5,  Middletown  was  author- 
ized to  contract  with  a  gas  company  for  street 


AUTHORITY  OF  MUNICIPAL  OFFICERS  TO  CONTRACT. 


223 


lighting,  but  was  given  no  specific  power  to 
make  a  continuing  contract.  The  town  made 
a  contract  for  five  years.  In  180(5  tlie  law  of 
1805  was  unconditionally  repealed.  Tlie  gas 
company  brought  an  action  to  recover  for  gas 
furnished  in  1870,  under  a  contract  made  with 
the  board  of  town  auditors  in  lSO.j.  The  court 
said:  "Prior  to  the  passage  of  the  act  of 
ISO.j  the  town  had  no  power  to  cause  any  of 
its  streets  to  be  lighted  with  gas  or  in  any 
other  way.  By  that  act  such  power  was  con- 
ferred upon  the  defendant.  For  what  time? 
The  learned  counsel  for  the  appellant  insists 
for  the  term  of  five  years,  at  least,  for  which 
the  contract  was  entered  into  by  the  plaintiff 
with  the  town  auditors  to  furnish  gas;  and 
that  during  that  time  the  legislature  had  no 
power  to  relieve  the  town,  or  any  part  of  it, 
from  the  expense  of  lighting  all  the  streets 
embraced  in  the  contract,  whatever  the  ne- 
cessity for  such  relief  might  bo.  If  tlie  board  of 
town  auditors  could  deprive  the  legislature  of 
this  power  for  five  years,  by  entering  into  a 
contract  with  the  plaintiff  for  that  time,  it 
might  for  100  years,  by  contracting  for  that 
l)eriod.  I  think  it  clear  that  no  such  power 
was  conferred  by  the  act  upon  the  town  audi- 
tors." Richmond  Co.  Gas-Light  Co.  v.  Town 
of  Middletown.  59  N.  Y.  228. 

[n  City  of  Chicago  v.  Rumpff.  45  lU.  90.  It 
was  held  that  municipal  corporations  were 
created  solely  for  the  public  good,  and  to 
that  end  the  corporate  authorities  were  held 
to  a  strict  exercise  of  the  franchises  confen-ed; 
that  a  right  to  do  all  slaughtering  of  animals 
within  the  city  of  Chicago  for  a  specified  period 
was  void,  because  creating  a  monopoly. 

In  Gale  v.  Kalamazoo,  23  Alich.  344,  where 
a  party  had  been  given  the  right  by  contract 
with  the  municipality  to  build  and  control  a 
market-house  for  the  period  of  10  years,  the 
contract  was  held  void,  because  it  created  a 
monopoly.  Jud^e  Copley  said  in  this  case: 
"It  is  impossible  to  predicate  reasonableness 
of  any  contract  by  which  the  governing  au- 
thority abdicates  any  of  its  legislative  powers, 
and  precludes  itself  from  meeting  in  the  prop- 
er way  the  emergencies  that  may  arise. 
Those  powers  are  conferred  in  order  to  be  ex- 
ercised again  and  again,  as  may  be  found  need- 
ful or  politic;  and  those  who  hold  them  in 
trust  to-day  are  vested  with  no  discretion  to 
circumscribe  their  limits  or  diminisli  their  effi- 
ciency, but  must  transmit  them  unimpaired 
to  their  successors.  This  is  one  of  the  funda- 
mental maxims  of  government,  and  it  is  im- 
possible that  free  government,  with  restric- 
tions for  the  protection  of  individual  or  munici- 
pal rights,  could  long  exist  without  its  recogni- 
tion." 

The  same  question  was  considered  in  the 
case  of  State  v.  Cincinnati  Gas-Light  &  Coke 
Co.,  18  Ohio  St.  202,  where  the  charter  of  the 
city  conferred  on  the  gas  company  iwwer  "to 
manufacture  and  sell  gas,  to  lay  pipes,  etc., 
provided  the  consent  of  the  city  council  be  ob- 
tained for  that  purpose."  Under  the  power 
given   to  the  city   coimcil  of   Cincinnati   "to 


cause  said  city,  or  any  part  thereof,  to  be 
lighted  with  oil  or  gas,  and  to  levy  a  tax  for 
that  purpose,"  it  contracted  to  invest  the  de- 
fendant with  full  power  and  exclusive  privilege 
of  using  the  streets,  etc.,  for  the  pm-pose  of 
lighting  the  city  for  the  period  of  25  years, 
and  thereafter  until  the  city  should  purchase 
the  gas-works.  It  was  held  that,  while  there 
was  no  doubt  about  the  city's  authority  to 
make  the  contract  for  gas-light,  there  was  no 
necessity  for  making  such  right  exclusive. 

In  Logan  v.  Pyne,  43  Iowa,  524,  the  city 
of  Dubuque  had  granted  to  the  plaintiff  the 
exclusive  privilege  and  franchise  of  running 
omnibuses  to  carry  passengers  upon  the  streets 
of  the  city  from  the  4th  day  of  January.  1872, 
to  the  1st  day  of  January,  1877.  The  plaintiffs 
alleged  that  they  had  complied  with  the  or- 
dinance granting  them  such  right,  and  charged 
the  defendant  with  violating  their  right  by  run- 
ning omnibuses  upon  the  streets  of  the  city, 
and  that  he  had  received  large  smns  of  money 
which  the  plaintiffs  were  entitled  to  under 
the  ordinance  granting  them  such  right.  The 
court  held:  "The  powers  of  municipal  cor- 
porations are  limited  to  the  express  terms  of 
the  grant,  and  will  not  be  extended  by  in- 
ference. A  municipal  corporation  can  confer 
exclusive  privileges  for  the  prosecution  of 
business  only  under  an  express  grant  of  pow- 
er from  the  legislature.  Monopolies  being 
prejudicial  to  the  public  welfare,  the  courts 
will  not  infer  grants  thereof,  refusing  to  pre- 
sume the  existence  of  legislative  intention  in 
confiict  with  public  policy." 

In  the  case  of  City  of  Brenham  v.  Brenham 
Water  Co.  {Tes,.  Sup.)  4  S.  W.  143,  a  city  ordi- 
nance granted  to  the  water  company  the  right 
and  privilege  for  the  term  of  25  years  from  the 
adoption  of  the  ordinance  of  supplying  the 
city  of  Brenham  and  its  inhabitants  with 
water  for  domestic  and  other  purposes,  and  for 
the  extinguishment  of  fires.  By  the  ordinance 
the  city  agreed  to  pay  to  the  water  companj' 
$3,000  per  annum  during  the  term  of  25  years, 
as  hydrant  rental.  The  charter  gave  the  city 
power  to  provide  the  city  with  water  for  tlie 
convenience  of  the  inhabitants  and  the  extin- 
guishment of  fires.  A  general  law  authorized 
any  city  in  which  a  water  company  was  or- 
ganized to  contract  witli  it  for  supplying  the 
city  with  water'.  It  was  held  that,  while  the 
several  laws,  taken  together,  undoubtedly  au- 
thorized the  city  to  make  some  contract  for 
supplying  itself  with  water,  yet  thej'  did  put 
confer  on  the  city  express  power  to  make  a 
contract  granting  the  water  company  the  ex- 
clusive right  to  supply  the  city  and  inliabltanta 
with  water  for  25  years  at  a  fixed  rate  per  an- 
num; and,  as  no  such  power  was  necessary 
to  the  proper  exercise  of  the  power  expressly 
grantetl,  it  could  not  be  implied;  and  that 
such  a  contract  was  unauthorized  and  invahd. 
In  this  case  the  com"t  said:  "We  do  not  wish  I 
to  be  understood  to  hold  that  a  municipal  cor- 
poration has  no  power,  in  any  event,  to  con- 
tract for  such  things  as  are  consumed  in  their 
daily  use,  for  a  period  longer  than  the  official ' 


221 


MUNICIPAL   CONTRACTS. 


/  term  of  the  officers  who  make  the  contract; 

'  iHit  we  do  intend  to  be  nnderstood  to  hold 
that  such  corporations  have  no  power  to 
make  contracts  continuous  in  character,  In 
reference  to  such  things,  or  any  others,  by 
wliit-h  they  will  he,  in  effect,  precluded  from 
exercising,    from    time    to    time,    any   powei', 

:  legislative  in  character,  conferred  upon  them 
by  law," 

In  Davenport  v.  Kleinschmidt,  6  Mont.  502, 
13  Pac.  249,  it  was  held  that  the  grant  by  a  city 
council  of  the  exclusive  right  of  selling  to  the 
city  of  Helena  aU  the  water  required  by  it  for 
sewerage  and  fire  purposes  I'or  the  period  of 
25  years,  at  a  minimum  rate  fixed  in  the  con- 
tract, was  a  monopoly;  and  this,  though  the 
grant  does  not  prevent  other  people  from 
selling  water  to  private  citizens;  that  a  city 
council  has  no  authority  to  grant  to  any  person 
a  monopoly,  even  where  no  express  prohibition 
is  found  in  the  charter  or  other  acts  of  the  leg- 
islature. In  delivering  the  opinion  in  this  case, 
among  other  things,  Mr.  Justice  McLeary  said: 
"Then,  the  power  to  provide  the  city  with 
water,  by  making  a  proper  contract  with  some 
person  to  erect  water- works,  and  sell  water  to 
the  city,  being  conceded,  the  next  question  that 
presents  itself  is  as  to  the  power  of  the  city 
to  make  this  particular  contract.  Is  the  pres- 
ent such  a  contract  as  to  be  beyond  the  power 
of  the  city  council  to  enter  into,  so  as  to  bind 
the  municipal  corporation?  Does  this  contract 
CTeate  a  monopoly?  For,  if  it  does,  it  goes  be- 
yond the  power  of  a  city  council.  Monopolies 
may  be  created;   but  they  must  be  called  into 

;  being  by  the  sovereign  power  alone.  A  city 
council  has  no  authority  to  grant  to  any  per- 

'  son  a  monopoly,  even  where  no  express  prohi- 

j  bition  is  found  in  the  charter  or  other  acts 

'  of  the  legislature.  Monopolies  are  contrary  to 
the  genius  of  a  free  government,  and  ought 
not  to  be  encouraged  by  the  people  or  counte- 
nanced by  the  courts,  except  when  expressly 

i  authorized  by  positive  law.  In  many  of  the 
state  constitutions  an  announcement  of  this 
principle  is  already  explicitly  declared.  A  rnp- 
ncyioly  is  defined  by  the  best  and  oldest  law- 
writers  to  be  'an  institution  or  allowance  by 
a  grant  from  the  sovereign  power  of  a  state, 
by  commission,  letters  patent,  or  otherwise,  to 
any  person  or  corporation,  by  which  the  exclu- 
sive right  of  buying,  selling,  making,  working, 
or  using  anything  is  given.'  2  Bouv.  Law 
Diet.  p.  rJ4;  5  Bac.  Abr.  'S;'  3  Co.  Inst.  18L 
It  has  also  been  well  defined  in  a  late  work 
as  follows:  'The  pojjiilar  memiing  of  "monopo- 
ly" at  the  present  day  seems  to  he  the  sole 
power  (or  a  power  largely  in  excess  of  that 
possessed  by  others)  of  dealing  in  some  par- 
ticular commodity,  or  at  some  particular  place 
or  market,  or  of  carrying  on  some  particular 
,  business.'  2  llap.  &  L.  Law  Diet.  8;W,  8.1.1." 
yv<  ,  In  Minturn  v.  Larue,  23  How.  435,  it  was 
~~  held  that  a  charter  authorizing  the  city  of 
Oakland  to  establish  and  regulate  ferries,  or 
to  authorize  the  construction  of  the  same, 
gave  no  power  to  the  city  to  gi-ant  an  exclu- 
sive privilege.     In  delivering  the  opinion  o'f 


the  court,  Mr.  Justice  Nelson  said:  "It  is  a  \ 
well-settled  rule  of  construction  of  grants  by 
the  legislature  to  corporations,  whether  public 
or  private,  that  only  such  powers  and  rights  ' 
can  be  exercised  under  them  as  are  clearly 
comprehended  within  the  woi'ds  of  the  act,  or 
derived  tlierefrom  by  necessary  implication, 
regard  being  had  to  the  objects  of  the  grant. 
Any  ambiguity  or  doubt  arising  out  of  the 
terms  used  by  the  legislature  must  be  resolved 
in  favor  of  the  public." 

In  the  case  of  Jackson  Co.  Horse  R.  Co.  v. 
Interstate  Rapid  Transit  Ry.  Co.,  24  Fed.  306, 
Judge  Brewer,  now  of  the  supreme  bench,  held 
that,  in  the  absence  of  express  authority  in  its 
charter,  the  city  of  Kansas  had  no  power  to 
grant  to  a  street-railway  company  the  sole 
right  for  the  space  of  21  years  to  construct, 
maintain,  and  operate  a  railway  over  and 
along  the  streets  of  such  city.  In  deciding 
that  case  the  judge  observed  that  he  had  been 
charged  with  the  duty  of  preparing  the  opin- 
ion of  this  court  in  the  case  of  Atchison  St. 
Ry.  Co.  V.  Missouri  Pac.  Ry.  Co.,  31  Kan.  660, 
3  Pac.  2S4,  where  the  right  of  a  street  railway 
to  occupy  the  sti*eets  of  the  city  was  challenged; 
that  the  opinion  there  formed  by  him  had  not 
been  changed  by  the  able  and  exhaustive  argu- 
ment of  the  learned  counsel  for  the  complain- 
ant. There,  as  here,  the  city  was  given  by  its 
charter  general  supei-vision  and  control  of  the 
streets  of  the  city,  but  was  not  given,  in'  ex- 
press terms,  power  to  authorize  street  rail- 
roads. In  other  words,  the  power  vested  in 
the  city,  and  the  extent  to  which  that  power 
had  been  exercised  by  the  city,  are  alike.  The 
court  did  not  decide  the  precise  question  here 
presented,  but  expressly  declined  to  give  any 
opinion  thereon,  holding  that,  under  the  gi-ant 
of  general  supervision  and  control  of  the 
streets,  the  city  had  power  to  permit  the  occu- 
pation of  its  streets  by  a  street  railroad. 
But,  obviously,  there  was  opened  for  inquiry 
the  broad  question  of  the  power  of  a  city 
under  such  a  general  gi-ant,  and  that  question 
was  made,  as  I  have  stated  heretofore,  the 
subject  of  full  and  careful  investigation. 

In  Saginaw  Gas-Light  Co.  v.  City  of  Sagi- 
naw, 28  Fed.  529,  it  was  held  that  authority 
given  "to  cause  the  streets  of  a  citj'  to  be  light- 
ed, and  to  make  reasonable  regulations"  with 
reference  thereto,  did  not  empower  the  city 
government  to  gi-ant  to  one  company  the  ex- 
clusive right  to  furnish  gas  for  30  years;  that 
the  exclusive  right  to  light  a  city  with  gas  for 
30  years  was  not  legally  "impaired"  by  a  sub- 
sequent conti'act  with  another  company  to 
light  the  streets  of  the  city  with  electricity. 
This  case  was  deciilod  by  Judge  Brown,  now 
of  the  supreme  court  of  the  United  States,  and 
the  authorities  were  fully  reviewed,  and  the 
principles  involved  wore  elaborately  discussed. 

In  the  case  of  Omalia  Horse  Ry.  Co.  v.  Cable 
Tramway.  Co.,  30  Fed.  .328,  Judge  Brewer 
said:  "This  rule  of  construction  against  the 
grantee,  wliich  applies  in  all  legislative  grants. 
obtains  with  the  grr^ater  force  in  a  case  like 
the  one  at  bar,  where  the  gi-ant  claimed  is  not 


AUTHORITY  OF  MUNICIPAL  OFFICERS  TO  CONTRACT. 


225 


merely  the  right  to  do  something,  but  of  a 
right  to  exclude  all  of  the  rest  of  the  public 
from  doing  that  thing.  He  who  says  that  the 
state  has  given  him  a  franchise — a  right  to  do 
that  which  without  that  franchise  he  could 
not  do — will  be  compelled  to  show  that  the 
franchise— the  right  claimed— is  within  tlie 
terms  of  his  grant.  Much  more  strenuous 
must  be  the  demand  upon  him  for  clear  and 
explicit  language  in  his  grant  when  he  claims 
that  a  part  of  it  is  not  merely  the  franchise, 
—the  right  to  do,— but  also  the  right  to  exclude 
all  others  of  the  public  from  exercising  the 
same  right,  and  the  state,  as  the  representa- 
tive of  the  public,  from  according  the  same 
right  to  another."  See,  also,  Proprietors  v. 
Wheeley,  2  Barn.  &  Adol.  793;  Charles  Kiver 
Bridge  v.  Wai-ren  Bridge,  11  Pet.  422;  Per- 
riue  V.  Canal  Co.,  9  IIow.  172;  Grand  Rapids 
E.  L.  &  P.  Co.  V.  Grand  Rapids  E.  E.  L.  &  F. 
G.  Co.,  33  Fed.  659. 

The  supreme  court  of  Pennsylvania  has  stat- 
ed the  rule  with  reference  to  the  grant  of 
franchise  in  Pennsylvania  R.  Co.  v.  Canal 
Com'rs,  21  Pa.  St.  22:  "When  a  state  means 
to  clothe  a  corporate  body  with  a  portion  of 
her  own  sovereignty,  and  to  disarm  herself  to 
that  extent  of  the  power  that  belongs  to  her, 
it  is  so  easy  to  say  so  that  we  will  never  be- 
lieve it  to  be  meant  when  it  is  not  said.  In 
the  construction  of  a  charter,  to  be  in  doubt 
is  to  be  resolved;  and  every  resolution  which 
springs  from  doubt  is  against  the  corpora- 
tion." 

Judge  Druinmond  said,  in  the  case  of  Garri- 
son V.  City  of  Chicago,  7  Biss.  4SS,  Fed.  Cas. 
No.  5,255:  "Tlie  officers  of  the  city — the  mem- 
bers of  the  council— are  trustees  of  the  public. 
They  are  clothed  with  authority  to  legislate 
upon  public  interests.  There  can  be  no  doubt 
that  the  right  to  regulate  the  lighting  of  the 
streets  and  to  furnish  means  for  the  same  by 
taxation  is  in  its  natm'e  legislative  power.  It 
concerns  the  whole  public  of  the  city.  The 
effect  of  the  contract  in  question  by  the  city 
authorities  in  October,  1SU9,  if  valid,  was  to 
bind  their  successors  for  ten  years  as  to 
those  matters  of  legislation.  If  it  be  conceded 
that  the  power  existed,  as  claimed,  then  it 
practically  follows  that  at  the  end  of  the  term, 
in  1879,  a  contract  may  be  made  bj'  their  suc- 
cessors without  limit,  and  which  may  bind  the 
public  indetinitely.  I  am  unwilling  to  sanc- 
tion a  principle  which,  in  a  case  like  this, 
would  lead  to  such  results.  The  safer  rule  is 
to  hold  the  officers  of  a  municipality  to  a  rigid 
accountability  in  the  discharge  of  their  trust. 
In  all  cases  of  contracts  to  run  for  years,  the 
authority  to  make  them  should  be  clear,  be- 
cause they  involve  pecuniary  liability,  and  it 
is  a  tax  upon  future  property  owners  of  the 
city.  To  sustain  the  contract  between  the  city 
and  gas  company  in  this  case  would  encourage 
the  making  of  such  contracts  in  the  future. 
It  would  place  it  in  the  power  of  companies, 
whose  interests  wore  to  be  affected  by  them, 
to  multiply  them,  and  to  continue  them  when 
the  public  interest  demanded  they  should 
ABB.CORP.— 15 


cease.  To  condemn  it  is  to  prevent,  so  far  as 
it  may  tend  to  produce  that  result,  the  use  of 
influences  which  look  to  private,  rather  than 
to  public,  profit.  It  is  better  that  ail  parties 
should  understand  there  is  a  limit  to  the! 
power  of  municipal  bodies  in  such  cases." 

The  supreme  court  of  Illinois  passed  upon  a 
question  similar  to  the  one  now  under  consid- 
eration in  the  case  of  City  of  East  St.  Louis  v. 
East  St.  Louis  Gas-Light  &  Coke  Co.,  98  111. 
415,  where  it  was  held:  "It  does  not  appear 
in  the  case,  nor  is  it  claimed,  that  the  city  has 
exercised  its  powers  by  ordinance  or  other- 
wise, or  manifested  a  wish  to  provide  differ- 
ently than  as  by  the  contract.  So  far  as  the 
contract  has  been  executed  it  has  been  as  one 
for  the  furnishing  of  the  light  during  the  pleas- 
ure of  the  city.  Courts  should  not  destroy 
the  contract  made  by  parties  further  than  some 
good  reason  requires.  Such  an  objection  is 
made  to  this  contract.  That  it  interferes  with 
the  exercise  of  the  legislative  or  governmental 
power  of  the  city  over  the  subject  does  not 
require  that  the  contract  should  be  held  void, 
but  only  voidable,  so  far  as  it  is  executory." 
To  the  same  effect  is  Decatur  Gas-Light  & 
Coke  Co.  V.  City  of  Decatur,  24  111.  App.  544; 
Carlyle  Water,  Light  &  Power  Co.  v.  City  of 
Carlyle,  31  111.  App.  325;  Bradley  v.  Ballard, 
55  111.  413. 

It  will  be  seen  by  this  extended  review  of 
the  authorities,   both  state  and  federal,   that 
there  are  three  classes  of  decisions  upon  this 
important   question.     The   supreme   court   of 
the  United  States  holds  that  where  there  has 
been  an  express  legislative  grant,  upon  a  con- 
dition of  perfoi-mance,  in  consideration  of  such 
performance    and    public    service,    after    per- 
formance by  the  grantee  it  becomes  a  contract 
which  is  protected  by  the  constitution  of  the 
United   States.     A  number  of  states,  notably 
Tennessee  and  Wisconsin,  have  said  that  such 
a  grant  is  not  a  monopoly,  and  is  fully  pro- 
tected, and  held  as  inviolable  as  a  contract  be- 
tween private  parties  or  private  corporations; 
while   other  states  and  some   federal   couils 
have  held  that  municipal  coi^porations  cannot 
make  contracts  beyond  the  legislative  life  of 
its  mayor  and  governing  body.     We  ai'e  not 
ready  to  indorse  the  latter  class  of  decisions, 
or  go  to  the  full  extent  of  the  former.     We  are 
not  inclined  to  the  opinion  that  the  question 
that  the  city  has  attempted  to  grant  an  ex- 
clusive franchise  is  necessarily  material  in  tliis 
case,    under  its  present  status.     It   Is   not  a 
question  between  contending  water  companies, 
as  to  which  shall  have  certain  privileges.     No 
company  is  offering  to  furnish  a  better  supply 
of  water  upon  more  reasonable  terms.     Hence 
we  do  not  think  the  franchise  should  now  be 
held  void  by  reason  of  its  exclusivoness.    That 
question  should  not  be  decided  until  it  is  be- 
fore us  in  a  case  in  which  it  Avould  be  proper 
for  us  to  pass  upon  it.     Again,  if  we  are  to 
follow  former  iirecedents,  much  of  the  argu- 
ment of  counsel  for  the  city  is  lost  wherein  he 
contends  that  tlie  franchise  claimed  is  in  direct 
conflict  with  section  2  of  the  bill  of  rights. 


i\ 


LI) 


226 


MUNICIPAL   CONTRACTS. 


This  court  has  said,  spealcing  through  Mr.  Jus- 
tice Bi;ewer,  that  the  words  "no  special  privi- 
leges or  immunities"  refer  to  privileges  or  im- 
munities of  a  political  nature.  Atchison  St. 
Ry.  Co.  V.  Missouri  Pac.  Ry.  Co.,  supra. 

/■  It  is  conceded  that  the  plaintiff  has  only  been 
furnishing  water  to  the  city  of  Columbus  for 
a  period  of  a  httle  more  than  four  years;  the 
works  having  been  tested  and  accepted  on  the 
2Sth  day  of  December,  1SS7.  So  far  as  the 
plaintiff  can  make  it,  the  contract  is  an  exe- 
cuted one;  and  during  the  period  of  its  exist- 
ence, while  the  city  used  the  hydrants  and 
paid  the  rental,  it  became  an  executed  con- 
tract so  far  as  the  city  was  concerned.  Now, 
the  city  having,  by  its  contract  and  permission, 
invited  the  expenditure  of  a  large  sum  of 
money  by  the  plaintiff  in  erecting  its  works, 
in  order  to  give  the  city  such  fire  protection  as 
it  had  agreed  to  pay  for  in  the  manner  indi- 
cated in  the  ordinance,  should  not  the  water 
company  be  given  a  reasonable  time  in  which 
it  might  have  the  benefits  of  a  contract  which 
had  been  agreed  to  and  recognized?  Or  shall 
we  say  that,  because  there  was  no  express  au- 
thority to  make  the  contract  for  the  period  of 
21  years,  it  is  therefore  void?  To  hold  to  the 
latter  proposition,  when  the  parties  cannot  be 
placed  in  the  same  condition  they  were  in  be- 
fore the  contract  was  executed,  would  be  a 
violation  of  the  plainest  rules  of  good  faith. 
The  plaintiff  alleges  that  in  pursuance  of  the 
contract  it  has  expended  large  sums  of  money 
in  constructing  its  water  plant;  that  bonds  to 
the  amount  of  $60,000  have  been  issued,  which 
are  secured  by  a  mortgage  upon  said  plant; 
that  the  rentals  from  private  consumers  of 
water  and  other  resources  are  not  sufficient 
to  pay  tlie  interest  on  the  bonds  as  tlie  eouixins 
mature,  and  it  has  no  means  of  paying  the  in- 
terest except  from  the  rentals  which  the  city 
had  contracted  to  pay;  that  the  city  has  no 
other  supply  for  water,  and  no  other  franchise 
has  been  gi-anted;  and  that  the  city  and  its 
inhabitants  are  without  protection  from  fire, 
except  as  provided  by  the  plaintiff;  that  the 
city  is  practically  the  same  size  it  was  in 
1S87,  and  the  taxable  property  is  substantially 
the  same  now  as  then.  As  the  case  stands 
here  upon  demurrer,  of  course  we  assume  these 
facts  to  be  true. 

^  In  Hitchcock  v.  Galveston,  96  U.  S.  341,  the 
city  council  had  contracted  with  the  plaintiffs 
to  build  certain  sidewalks,  to  be  paid  for  by 
the  city  in  bonds.  The  work  was  partly  per- 
formed, but  the  city  council  stopped  the  work 
and  prevented  its  completion.  An  action  was 
brought  for  a  breach  of  the  contract.  It  was 
urged  that  the  city  had  no  power  to  make 
such  a  contract,  and  it  had  no  authority  to 
issue  the  bonds  of  the  city.  The  court  said: 
"It  is  enough  for  the  plaintiffs  that  the  city 
council  have  the  power  to  enter  into  a  con- 
tract for  the  improvement  of  the  sidewalks; 
that  such  contract  was  made  with  them;  that 
under  it  they  have  proceeded  to  furnish  ma- 
terial and  do  work,  as  well  as  to  assume  lia- 
bilities;  that  the  city  has  received,  and  now 


enjoys,  the  benefit  of  what  they  have  furnish- 
ed; that  for  these  things  the  city  promised  to 
pay;  and,  after  receiving  the  benefit  of  the 
contract,  broke  it.  It  matters  not  that  the 
promise  was  to  pay  in  a  manner  not  author- 
ized by  law.  If  paj'ment  cannot  be  made  in 
bonds,  because  their  issue  is  ultra  vires,  it 
would  sanction  rank  injustice  to  hold  that 
payment  need  not  be  made  at  all.  Such  is 
not  the  law.  The  contract  between  the  par- 
ties is  in  force  so  far  as  it  is  lawful."  The 
court  cites  in  support  of  the  decision  the  case 
of  State  Board  of  Agriculture  v.  Citizens'  St. 
Ry.  Co.,  47  Ind.  407,  where  the  court  held  that 
"although  there  may  be  a  defect  of  power  in 
a  corporation  to  make  a  contract,  yet,  if  a 
contract  made  by  it  is  not  in  violation  of  its 
charter,  or  of  any  statute  prohibiting  it,  and 
the  corporation  has  by  its  promises  induced  a 
pai'ty,  relying  on  the  promises  and  in  exeeutiou 
of  the  conti'act,  to  expend  money,  and  perform 
his  part  of  the  contract,  the  coi-poration  is  hable 
on  the  contract." 

We  do  not  wish  to  be  understood  as  uphold- 
ing the  contract  upon  which  the  plaintiff  re- 
lies for  any  particular  period  of  time,  but  we 
are  not  prepared  to  say  that  it  is  void.    Nei- 
ther would  we  apply  the  loile  with  the  same 
strictness    to    municipal     corporations     that 
should  govern  private  corporations  organized 
for  gain.     Courts  should  be  governed  by  the  i 
conditions    and    circumstances    surrounding  I 
mmiicipalities,  and  regard  them  as  branches  I 
of  the  sovereign  government.     When  improv-  '^ 
ed  methods  are  offered,  which  will  give  to  the  I 
city  better  facilities  in   the   way  of   water.  I 
lights,   and  travel,   or  in  any  other  manner  | 
give  to  its  inhabitants  increased  safety  and 
protection,  the  governing  power  of  the  city 
should  be  free  to  act;    but  until  such  time 
comes  courts  should  not  set  aside  contracts 
which  have  been,  in  part  at  least,  executed, 
unless   for   some   good   cause.     The   circum- 
stances surrounding  each  particular  case  will 
have  to  largely  govern,  and  no  fixed  and  de- 
terminate rule  can  be  established.    The  facts, 
as  presented  by  the  pleadings,  are  not  suffi- 
cient, in  our  opinion,  to  authorize  us  to  say 
that  the  contract  entered  into  between  the 
city  and  the  water-works  company  is  ultra 
vires,  and  should  not,  therefore,  be  enforced. 

To  show  the  limit  to  which  the  supreme 
court  of  the  United  States  has  gone  in  uphold- 
ing franchises  of  a  similar  nature  to  the  one 
under  consideration,  we  quote  the  language 
of  Mr.  Justice  Davis,  in  Binghampton  Bridge, 
3  Wall.  51:  "The  purposes  to  be  attiiined  are 
generally  beyond  the  ability  of  individual  en- 
terprise, and  can  only  be  accomplished 
through  the  aid  of  associated  wealth.  This 
will  not  be  risked  unless  privileges  are  given 
and  securities  furnished  in  an  act  of  incor- 
poration. The  wants  of  the  public  are  often 
so  imperative  that  a  duty  is  imposed  on  the 
government  to  provide  for  them;  and,  as  ex- 
perience has  proved  that  a  state  should  not 
directly  attempt  to  do  this,  it  is  necessary  to 
confer  on  others  the  faculty  of  doing  what 


AUTHORITY  OF  MUNICIPAL  OFFICERS  TO  CONTRACT. 


227 


the  sovereign  power  is  unwilling  to  under- 
take. The  legislature  therefore  says  to  pub- 
lic-spirited citizens:  'If  you  will  emliark  with 
yoiu"  time,  money,  and  skill  in  an  enterprise 
which  will  accouunodate  the  public  necessi- 
ties, we  will  grant  you,  for  a  limited  period, 
or  In  perpetuity,  privileges  that  will  justify 
the  expenditure  of  your  money  and  the  em- 
ployment of  your  time  and  skill.'  Such  a 
grant  is  a  contract  with  mutual  considera- 
tions, and  justice  and  good  policy  alike  require 
that  the  protection  of  the  law  should  be  as- 
sured to  it."  Mr.  Justice  Valentine,  in  the 
case  of  Brown  v.  City  of  Atchison,  39  Kan. 
54,  17  Pac.  465,  speaking  for  this  court,  after 
a  review  of  the  authorities  upon  the  question 
of  corporate  power,  educed  the  following  prin- 
ciple: "Where  a  contract  is  entered  into  in 
good  faith  between  a  corporation,  public  or 
private,  and  an  individual  person,  and  the  con- 
tract is  void,  in  whole  or  in  part,  because  of 
a  want  of  power  on  the  part  of  the  coi-pora- 
tion  to  make  it  or  to  enter  into  it,  but  the  con- 
tract is  not  immoral,  inequitable,  or  unjust, 
and  the  contract  is  performed  in  whole  or  in 
part  by  and  on  the  part  of  one  of  the  parties, 
and  the  other  party  receives  benefits  by  rea- 
son of  such  performance  over  and  above  any 
equivalent  rendered  in  return,  and  these  ben- 
efits are  such  as  one  party  may  lawfully  i"en- 
der  and  the  other  party  lawfully  receive,  the 
party  receiving  sucli  benefits  will  be  required 
to  do  equity  towards  the  other  party  by  ei- 
ther rescinding  the  contract  and  placing  the 
other  party  in  statu  quo,  or  bj'  accounting  to 
the  other  party  for  all  benefits  received,  for 
which  no  equivalent  has  been  rendered  in  re- 
turn; and  all  this  should  be  done  as  nearly 
in  accordance  with  the  terms  of  the  contract 
as  the  law  and  equity  will  permit."  As  this 
court  has  already  decided,  the  city  of  Colum- 


bus had  the  authority  to  make  a  contract  for 
the  supply  of  water  for  protection  against  fire; 
and,  as  such  contract  has  been  entered  into 
and  carried  out  in  part,  we  are  not  prepared 
to  say  that  it  is  void  because  the  authoritif  s 
of  the  city  did  not  possess  the  power  to  make 
a  contract  for  the  period  of  21  years.  If  the 
contract  had  only  been  executory,  and  no 
rights  had  accrued,  we  might  hold  otherwise. 
As  to  the  ratification  of  irregular  contracts, 
see  authorities  cited  in  Columbus  Water- 
Works  Co.  V.  City  of  Columbus,  46  Kan.  677, 
26  Pac.  1046. 

It  is  forcefully  lu-ged  by  counsel  for  the 
city  that  under  paragx'aph  706  of  the  General 
Statutes  of  1889  the  contract  with  the  water 
company  is  void;  that  a  city  of  the  second 
class  cannot  create  a  valid  liability  which  re- 
quires a  tax  to  be  levied  in  excess  of  4  per 
cent.  The  paragraph  reads:  "At  no  time 
shall  the  levy  of  all  the  city  taxes  of  the  cur- 
rent year  for  general  purposes,  exclusive  of 
school  taxes,  exceed  four  per  cent,  of  the  tax- 
able property  of  the  city,  as  shown  by  the 
assessment  books  of  the  preceding  year."  It 
appears  from  the  pleadings  in  the  former  case 
that  the  city  tax  for  the  year  1890  was  27l^ 
mills.  This  does  not  include  the  state  and 
county  tax,  and  we  think  the  limitation  only 
applies,  as  stated,  to  the  city  taxes  of  the 
current  year  for  general  purposes.  Adopting 
this  construction  of  the  law,  the  position  of 
counsel  is  not  tenable.  It  is  recommended 
that  the  demurrer  to  the  petition  be  overi-uled. 

PER  CURIAM.  It  is  so  ordered;  VAL- 
ENTINE and  JOHNSTON,  JJ.,  concurring. 

HORTON,  C.  J.  I  concur  in  the  judgment 
recommended  to  be  entered  by  this  court,  but 
not  in  all  stated  in  the  opinion. 


228 


LOCAL  ASSESSMENTS. 


OSHKOSH  CITY  RY.  CO.  et  al.  v.  WINNE- 
BAGO COUNTY  et  al. 

(61  N.  W.  1107,  89  Wis.  435.) 

Supreme  Court  of  Wisconsin.     Feb.  5,  1895. 

Appeal  from  circuit  court,  Winnebago  coun- 
ty;   George  W.  Burnell,  Judge. 

Action  by  the  Osbkosh  City  Railway  Com- 
pany and  others  against  the  county  of  Win- 
nebago and  others.  From  a  judgment  for 
plaintiffs,  defendants  appeal.    Affirmed. 

Tho  action  is  to  set  aside  a  special  assess- 
ment tax,  to  cancel  a  tax  certificate  issued 
thereon,  and  to  restrain  the  execution  of  a 
tax  deed  on  such  certificate.  The  plaintiff  is 
a  railway  company,  liaving  a  right  of  way 
and  roadbed  and  tracks  along  Ceape  street, 
in  the  city  of  Oshkosh,  near  the  center  of 
the  street.  The  board  of  aldermen  paved  and 
curbed  Ceape  street  with  cedar  blocks.  It 
charged  a  part  of  this  improvement  against 
the  plaintiff's  right  of  way  and  roadbed. 
That  the  assessment  was  unpaid,  and  the 
right  of  way  and  roadbed  were  afterwards 
sold,  and  a  tax  certificate  issued  to  the  coun- 
tj-  of  Winnebago.  Thex-e  was  a  finding  and 
judgment  for  the  plaintiff,  from  which  the 
county   appeals. 

H.  Fitzgibbon  and  H.  I.  Weed,  for  appel- 
lants. Felkers,  Stewart  &  Felker,  for  re- 
spondents 

NEWMAN,  J.  No  question  is  made  of  the 
power  of  the  legislature  to  make  the  right  of 
way  of  a  railroad  company  subject  to  special 
assessment  for  the  improvement,  by  paving, 
of  a  street  in  a  city,  to  the  extent,  at  least, 
to  which  it  is  benefited  by  the  improvement. 
It  is  not  so  clear  that  it  may  authorize  an  as- 
sessment for  an  improvement  which,  from 
the  nature  of  the  property,  cannot  benefit 
it  Dill.  Mun.  Coi-p.  761-7G8.  In  this  case  the 
important  question  is,  has  the  legislature 
made  property  situated  as  this  property  is 
subject  to  special  assessment  for  paving  the 
street  in  which  it  lies?  The  answer  to  this 
question  depends  altogether  upon  what  may 
be  the  proper  interpretation  of  the  statutes 
which  are  thought  to  give  the  power  to 
make  such  assessment  to  the  city.  The  first 
consideration  is  whether  these  statutes  are 
to  have  a  liberal  construction  or  a  strict  con- 
struction. It  is  believed  to  be  elementary 
that  evoiy  statute  which  is  in  derogation  of 
the  right  of  property,  or  that  takes  away  the 
estate  of  the  citizen,  ought  to  be  construed 
strictly.  It  should  never  be  enlarged  bj-  an 
equitable  construction.  Suth.  St  Const  § 
303;  23  Am.  &  Eng.  Enc.  Law,  383  et  seq., 
and  cases  cited  in  notes.  The  power  to  make 
local  assessments  is  a  part  of  the  power  of 
taxation.  It  is  a  sovereign  power.  It  re- 
sides alone  in  the  legislature.  It  can  be 
delegated,  but  only  by  plain  and  unambigu- 
ous words.  Statuics  del  ■g.uiiig  .sik-u  auuiur- 
ity  will  be  construed  strictly;  nothing  will 
be  taken  by  presumption  or  intendment;  and 
such  statutoiy  powers  must  be  strictly  pur- 


sued. Suth.  St  Const  §  365,  and  cases  cited 
in  notes  4  and  5;  Curtis  v.  Supervisors,  22 
Wis.  167;  Potts  V.  Cooley,  51  Wis.  353,  8  N. 
W.  153,  and  cases  cited.  The  affirmative  is  I 
on  the  city.  It  must  produce  express  power 
in  legislative  enactment,  and  show  that  it 
has  followed,  strictly,  every  legal  require-  \ 
ment  In  re  Second  Ave.  M.  E.  Church,  66 
N.  Y.  395.  Any  doubt  or  ambiguity  arising  i 
out  of  the  terms  used  by  the  legislature  must 
be  resolved  against  the  power.  Minturn  v.  ' 
Larue,  23  How.  435.  Guided  by  these  prin- 
ciples of  interpretation,  the  statutes  which  are 
claimed  to  be  authority  for  the  levy  of  this 
assessment  are  to  be  tested.  First  is  section  //) 
1836,  Rev.  St,  which  requires  every  corpora- 
tion  which  owns  or  operates  a  railroad  in 
the  street  of  a  city  to  restore  the  street  to 
its  former  condition,  so  that  its  usefulness 
shaU  not  be  materially  impaired,  and  "there- 
after maintain  the  same  in  such  condition 
against  any  effects  in  any  manner  produced 
by  such  railroad."  It  would  certainly  re- 
quire a  very  wild  flight  of  imagination  to 
discover  in  this  statute  any  plain  power  to 
make  a  local  assessment  on  the  railroad  cor- 
poration to  improve  the  street  The  statute,  in 
terms,  only  requires  the  corporation  to  "main- 
tain" the  street,  not  to  improve  it  Then  / « \ 
there  is  section  1038,  Rev.  St.  This  is  in  the  ^  ^ 
chapter  relating  to  general  taxation.  It  is 
no  part  of  the  purpose  of  the  chapter  to 
provide  for  special  assessments.  The  section 
relates  especially  to  "property  exempt  from 
taxation."  It  provides  generally  that  "the 
track,  right  of  way,"  and  the  other  prop- 
erty named,  belonging  to  raih-oad  corpoi-a- 
tions.  shall  be  exempt  from  taxation.  This 
is  followed  by  this  exception  or  proviso:  "Ex- 
cept that  it  shall  be  subject  to  special  as- 
sessment for  local  improvements  in  cities  and 
villages."  It  is  as  if  the  legislature  had  said 
"the  track,  right  of  way,"  and  other  prop- 
erty of  railroad  corporations  shall  be  ex- 
empt from  taxation,  "provided,  nothing  in 
this  section  shall  be  construed  as  exempting 
such  property  from  local  assessment  for  im- 
provements in  cities  and  villages."  The 
proviso  in  no  way  changes  the  force  or  mean- 
ing of  the  purview.  It  neither  enlarges  or 
subtracts  from  it.  Such  property  would  have 
been  and  remained  liable  to  local  assessments 
if  the  proviso  had  been  entirely  omitted. 
Dill.  Mun.  Corp.  §  777.  The  proviso  was 
added  for  reasons  of  caution.  It  is  one  of- 
fice of  a  proviso  to  exclude  some  possible 
ground  of  misinterpretation  of  the  act  Stud- 
ley  V.  Oshkosh,  45  Wis.  380.  But  if  this  stat- 
ute should  be  held  to  be  an  affirmative  stat- 
ute, enacted  with  a  view  to  make  property 
of  this  class  subject  to  local  a.ssessments,  it 
is,  at  most,  a  mere  general  declaration  that 
such  property  shjill  be  subject  to  local  as- 
sessments for  improvements,  in  cases  to  ■  , 
be  provided  by  law;  for  it  has  no  self-execut- 
ing force.  The  cases  in  which  it  shall  be  lia- 
ble must  be  defined  and  limited,  as  well  as 
the  manner  of  the  assessment  directed,  before 


LOCAL  ASSESSMENTS. 


229 


such  property  can  really  be  made  subject  to 
such  assessments.  So  the  real  power  to  make 
this  assessment,  if  it  exists,  is  to  be  found 
in  some  other  exercise  of  legislative  power. 
If  it  exists,  it  should  be  found  in  the  charter 
^  i]ot  the  city  of  Oshkosh.  This  is  chapter  183 
-Vof  the  Laws  of  ISSS.  Subchapter  10,  §  3, 
gives  power  to  the  aldermen  to  make  such 
improvements  as  were  made  in  Ceape  street, 
and  to  "charge  the  cost  and  expense  thereof 
to  the  center  of  the  street  or  alley  to  any  lot 
or  lots  fronting  or  abutting  on  such  street 
or  alley."  These  are  ail  the  words  in  the 
city  charter  which  are  claimed  to  evince  the 
legislative  intention  to  subject  the  plaintiff's 
right  of  way  in  Ceape  street  to  local  assess- 
ment for  paving  the  street.  This  statute,  in 
words,  gives  power  to  charge  the  cost  of 
the  improvement  only  against  "lots"  which 
front  or  abut  upon  the  street  improved. 
Waiving  all  question  of  strict  or  liberal  con- 


struction, the  court  must,  at  least,  be  able 
to  see  in  the  words  used  a  legislative  inten- 
tion to  make  the  plaintiff's  right  of  way  lia- 
ble to  the  assessment.  Even  with  the  defi- 
nition stating  that  the  term  "lot"  may  in- 
clude "a  strip  of  land,"  it  is  not  easy  to  see 
tliat  the  term  "lot"  describes  the  plaintiff's 
right  of  way,  with  its  roadbed  and  tracks, 
wholly  within  the  street,  and  not  outside  of 
it,  and  of  indefinite  length.  Nor  is  it  easy  to 
see  that  this  strip  of  land,  even  if  it  could 
be  termed  a  "lot,"  fronts  or  abuts  upon  the 
street;  for  it  is  wholly  within  and  a  part 
of  the  street.  The  conclusion  seems  to  be  ir- 
resistible that,  by  the  use  of  the  words  it 
has  chosen,  the  legislature  has  not  intended 
to  subject  the  rights  of  way  of  railroad  com- 
panies, in  the  city  of  Oshkosh,  to  such  spe- 
cial assessment.  Certainly,  it  is  not  clear 
that  the  lawmaking  power  did  so  intend. 
The  judgment  of  the  circuit  court  is  affirmed. 


230 


LOCAL   ASSESSMENTS. 


(48  La.  Ann.) 

NELSON  et  al.  t.  MAYOR.  ETC.,  OF  TOWN 
OF  HOMER.      (No.  12,016.) 

(19  South.  271,  48  La.  Ann.  258.) 

Supreme   Court   of  Louisiana.     Feb.   10,    18{>6. 

Appeal  from  judicial  district  court,  parish 
of  Claiborne;   Allen  Barksdale,  Judge. 

Action  by  A.  T.  Nelson  and  others  against 
the  mayor  and  selectmen  of  the  town  of  Ho- 
mer. Judgment  for  defendants,  and  plain- 
tiffs appeal.     Reversed. 

J.  W.  Holbert,  for  appellants.  John  A. 
Richardson,  for  appellees. 

McENERY,  J.  The  p-aintiffs,  who  are  tax- 
payers in  the  town  of  Homer,  bring  this  suit 
to  annul  certain  ordinances  of  the  corporation 
establishing  a  high  school,  and  the  ordinances 
assessing  and  appropriating  five  mills  of  the 
taxes  of  1805  for  the  support  and  mainte- 
nance of  the  school.  The  reason  for  the  nul- 
lity of  the  ordinancf^  is  that  the  corporation  of 
the  town  of  Homer  was  without  power  and 
authority  to  enact  said  ordinances,  to  levy 
said  amount,  and  appropriate  the  same  for 
educational  purposes.  The  defense  is  that 
under  article  209  of  the  constitution  municipal 
corporations  have  the  power  and  authority  to 
levy  and  collect  taxes  to  the  amount  of  10 
mills  for  municipal  purposes,  and  that  an  as- 
sessment for  educational  purposes  is  a  munici- 
pal regulation.  It  is  further  alleged  that  the 
corporation,  in  accordance  with  Act  No.  110 
of  1880,  amended  its  charter,  and  incorporat- ** 
ed  this  power  in  it.  Under  the  general  wel- 
fare clause  of  the  charter,  as  originally  grant- 
ed, the  district  judge  rendered  a  judgment  in 
favor  of  defendants,  maintaining  the  legality 
of  the  ordinances  and  the  assessment  and  ap- 
propriation of  the  tax.  The  plaintiffs  appeal- 
ed. 

Article  209  of  the  constitution,  m  the  pro- 
viso to  said  article,  authorizes  parishes  and 
municipalities  to  Increase  the  rate  of  taxa- 
tion for  the  purpose  of  erecting  and  construct- 
ing public  buildings,  bridges,  and  works  of 
public  improvement.  Under  this  article  it 
would  be  a  wide  interpretation  to  include 
within  its  meaning  the  establishment  of  and 
the  support  of  a  public  school.  Public  edu- 
cation is  declared  by  the  constitution  to  be  an 
affair  of  the  state,  and  it  assumes  the  whole 
responsibility  of  public  education.  It  will  be 
unnecessary  to  discuss  the  question  whether 
I  the  legislature  by  a  general  law  could  author- 
ize local  assessments  for  educational  purposes. 
This  question  is  not  raised.  But  it  is  certain 
!  from  the  provisions  of  the  constitution  that 
'  the  legislature  is  without  power  to  confer 
this   privilege   upon   any    particular   political 


corporation.  Const,  art.  46.  The  power  claim- 
ed to  levy  this  tax  under  the  amendment  of 
the  charter  of  the  constitution  is  unfounded. 
The  general  assembly  is  prohibited  from  pass- 
ing any  local  or  special  law  creating  corpora- 
tions or  annulling,  renewing,  or  extending  or 
explaining  the  charters  thereof,  except  as  to 
the  city  of  New  Orleans  and  the  creation  of 
levee  districts.  Article  46,  Const.  Act  No. 
110  of  1880  was.  in  consequence  of  this  pro- 
hibition, enacted,  authorizing  existing  corpo- 
rations, by  a  vote  of  its  members,  to  alter, 
change,  and  amend  their  charters.  There  is 
no  power  conferrea  by  the  act  upon  any  cor- 
poration to  incorporate  within  its  charter  any 
grant  of  any  privilege  not  existing  in  the 
original  charter.  Corporations  are  the  crea- 
tures of  legislative  will,  and  can  do  no  act  not 
authorized  by  their  charters,  unless  it  is  by 
implication  necessary  to  carry  out  conferred 
powers.  In  the  original  charter  there  was  no 
grant  of  any  right  to  the  corporation  of  Ho- 
mer to  erect  a  school  building  and  maintain 
a  high  school.  It  cannot,  by  its  own  act, 
usurp  powers  not  granted.  There  was  no  au- 
thority under  the  act  for  the  corporation  to 
so  amend  its  charter  as  to  authorize  the  levy- 
ing of  a  tax  for  the  maintaining  of  a  high 
school,  or  for  any  ot'.^er  educational  purpose. 
Torian  v.  Shayot,  47  La.  Ann.  580,  17  South. 
203;  Cook  v.  Dendinger,  38  La.  Ann.  261. 
The  general  welfare  clause  of  the  corporation 
cannot  be  so  construed  as  to  permit  the  exer- 
cise of  an  original  power,  necessary  to  be 
granted  in  the  first  instance  by  legislative 
will.  Under  this  clause  many  useful  and  nec- 
essary exercises  of  power  are  allowed,  but  they 
are  all  referable  to  powers  granted,  or  those 
necessarily  implied.  The  subject  of  educa- 
tion is  an  important  matter,  and  it  is  so  treat- 
ed by  the  state,  as  it  seems  to  be  jealous  of 
the  exercise  of  the  power  by  subordinate  po- 
litical corporations,  as  it  has  not  granted  lo- 
cal self-taxation  for  this  purpose.  This  may 
be  the  keystone  to  a  euccessful  educational 
system,  but  the  collective  people  in  conven- 
tion did  not  so  regard  it,  otherwise  it  would 
have  found  a  place  in  the  educational  system 
of  the  state,  and  protection  in  the  permanency 
of  the  organic  law.  A  high  school  is  not  es- 
sential to  municipal  government.  A  system 
of  education  is  not  a  part  of  municipal  regu- 
lation, and  the  power  of  the  corporation  to 
establish  a  public  school  cannot  be  infen-ed 
from  any  power  necessary  for  municipal  ex- 
istence." The  judgment  appealed  from  is  an- 
nulled, avoided,  and  reversed,  and  it  is  now 
ordered  that  there  be  judgment  for  plaintiffs 
decreeing  the  nullity  of  the  ordinances  men- 
tioned in  the  petition,  and  on  which  the  taxing 
power  and  assessment  is  exercised  for  the 
levying  of  the  five-mill  tax  complained  of. 


l^^fJ^OL 


W'  '^ 


WHAT  CONSTITUTES  A  "LOCAL  IMPROVEMENT. " 


231 


PAYNE  et  al.  v.  VILLAGE  OF  SOUTH 
SPRINGFIELD. 

(44  N.  E.  105,  IGl  lU.  285.) 

Supreme  Court  of  Illinois.     May  12,   1896. 

Appeal  from  Sanpamon  county  court; 
George  W.  Murraj',  Jutlpe. 

Proceeding  by  the  village  of  South  Spring- 
field for  the  levy  of  a  special  tax  for  the  con- 
struction of  a  sewer.  From  a  judgment  con- 
firming the  levy  made,  Edward  W.  Payne 
and  others,  property  owners,  appeaL  Re- 
versed. 

McGuire  &  Salgenstein  and  A.  S.  IMurray, 
for  appellants.  Coukliug  &  Grout,  for  ap- 
pellee. 


f> 


WILKINS,  J.t        •        *        *        ♦        ♦        * 

The  objei-tion  to  the  validity  of  the  ordi- 
nance most  strongly  insisted  upon  is  that  it  is 
unreasonable  and  oppressive.  It  cannot  be 
denied  that  the  sewer  provided  for  in  the  or- 
dinance is  a  local  improvement,  within  the 
meaning  of  section  1,  art.  9,  c.  24,  Rev.  St 
It  is  admitted  that  this  court  has  frequently 
sustained  special  assessments  for  the  construc- 
tion of  sewers,  and  clearly  that  could  only 
have  been  done  on  the  ground  that  they  were 
local  improvements.  Being  such,  authority  to 
make  them  by  special  taxation,  as  well  as  by 
special  assessment,  is  expressly  given  by  sec- 
tion 1,  supra.  In  City  of  Galesburg  v.  Searles, 
114  111.  217,  29  X.  E.  686,  it  was  expressly  held 
that  an  ordinance  providing  for  the  coustruc- 
iiyn  of  a  sewer,  to  be  paid  for  one-half  by 
general  tax  and  one-half  by  special  tax,  to 
be  levied  on  contiguous  property,  was  valid. 
It  is  true  that  ordinance  provided  that  the 
special  tax  should  be  levied  in  proportion  to 
the  benefits  accruing  to  the  contiguous  prop- 
erty, but  it  was  said:  "Having  determined  to 
raise  only  one-half  the  cost  of  the  improve- 
ment by  special  taxation  of  contiguous  prop- 
erty, it  was  open  to  the  city  council  to  adopt 
which  one  of  the  various  modes  of  special 
taxation  of  the  property  they  saw  fit, — wheth- 
er according  to  frontjige  of  the  property,  value, 
benefits  received,  or  otherwise."  That  grad- 
ing or  paving  a  street,  and  the  laying  of  side- 
walks are  local  improvements,  to  pay  for  which 
a  special  tax  may  be  levied  upon  contiguous 
property,  in  proportion  to  frontage,  has  been 
the  law  of  this  state  since  the  decision  in 
White  v.  People,  94  111.  604.  That  the  benefits 
I  accruing  to  property  contiguous  to  a  street  in 
'  which  a  sewer,  like  the  one  contemplated  by 
.  this  ordinance,  is  laid,  differ  in  kind,  and 
/  perhaps  in  degree,  from  those  derived  from 
improving  the  street  itself,  or  laying  side- 
I  walks,  is  admitted;  but  the  benefits  are  cer- 
[  tainly  no  less  local  to  the  adjacent  property  in 

1  Part  of  the  opinion  is  omitted. 


the  one  case  than  in  the  other.  But  it  i.-^ 
said  a  special  tax  levied  on  the  lots  of  laud 
lying  on  the  street  in  which  the  sewer  is  laid, 
in  proportion  to  frontage,  in  this  case,  oper- 
ates unjustly,  and  is  therefore  unreasonable. 
We  said,  in  White  v.  People,  supra:  "Wheth- 
er or  not  the  special  tax  exceeds  the  actuiil 
benefit  to  the  lot  is  not  material.  It  may  be 
supposed  to  be  based  on  a  presumed  equiva- 
lent. The  city  coimcil  have  determined  the 
frontage  to  be  the  proper  measure  of  proper- 
ty benefits.  That  is  generally  considered  as 
a  very  reasonable  measure  of  benefits  in  the 
case  of  such  improvements,  and  though  it 
does  not  in  fact,  in  the  present  case,  repre- 
sent the  actual  benefits,  it  is  enough  that  the 
city  council  have  deemed  it  the  proper  rale  to 
apply."  This  doctrine  has  been  assailed  time 
and  again,  but  never  departed  from  by  this 
court.  ^  It  was  said,  in  City  of  Springfield  v. 
Green,  120  lU.  269,  11  N.  E.  261,  after  cit- 
ing numerous  decisions:  "If  it  be  possible  to 
settle  any  question  by  repeated  decisions,  all 
the  same  way,  the  present  surely  ought  to  be 
regarded  as  finally  and  irrevocably  settled." 
And  in  the  late  case  of  Chicago  &  A.  R.  Co. 
V.  City  of  Joliet,  153  111.  649,  39  N.  E.  1077,  it 
was  reannounced,  with  a  citation  of  numerous 
later  decisions  to  the  same  effect.  Counsel 
seem  to  imderstand  that  the  cases  of  City  of 
Bloomington  v.  Chicago  &  A.  R.  Co.,  134 
111.  451,  26  N.  E.  366,  aud  City  of  Blooming- 
ton  V.  Latham,  142  111.  462,  32  N.  E.  506,  are 
to  the  contrary.  This  is  a  misconception  of 
those  cases.  In  each  of  them  the  ordinance 
before  the  court  showed  upon  its  face  that 
the  property  sought  to  be  taxed  was  not  only 
not  benefited  by  the  improvement,  but  actual- 
ly damaged  thereby.  There  the  question  was 
not  whether  the  tax  exceeded  the  benefits,  but 
whether  a  special  tax  could  be  legally  levied 
at  all;  it  appearing  that  no  benefits  whatever 
could  possibly  accrue  to  it.  Here  it  is  not 
pretended  that  the  property  of  objectors  will 
j  not  be  benefited  by  the  sewer,  nor  is  it  claim- 
ed that  the  improvement  is  not  one  proper 
to  be  made.  The  sole  objection  is  that,  by 
adopting  the  system  of  levying  the  special  tax 
by  frontage  instead  of  according  to  benefits 
to  be  estimated  by  commissioners,  injustice 
to  property  holders  has  been  done,  and.  as  we 
have  seen,  that  question  was  not  open  to  con- 
sideration in  the  county  court,  nor  is  it  subject 
to  review  here.  We  do  not  think  the  position 
that  the  ordinance  is  invalid,  because  it  does 
not  provide  for  the  levying  of  a  special  ta.x 
upon  the  railroad  right  of  way,  is  tenable. 
The  railroad  right  of  way  is  not,  in  any  prop- 
er sense,  contiguous  to  the  sewer,  which  sim- 
ply passes  through  it  underground. i 


1  Part  of  the  opinion  is  omitted. 

/^K.we/«=^  ^k"^^"  h^^ 


232 


LOCAL   ASSESSMENTS. 


PALMER  et  al.  v.  CITY  OF  DANVILLE. 

(38  N.  E.  1067,  154  111.  15G.) 
Supreme  Court  of  Illinois.     Nov.  26,  1894. 

Error  to  Vermilion  county  court;  John  G. 
Thompson.  Judge. 

Petition  by  the  city  of  Danville  for  confirma- 
tion of  a  special  tax.  Levin  T.  Palmer  and 
others  filed  objections.  There  was  judgment 
of  confirmation,  and  the  objectors  bring  error. 
Reversed. 

D.  D.  Evans  and  E.  R.  E.  Kimbrough,  for 
appellants.     Wm.  J.  Calhoun,  for  appellee. 

'  CARTER,  J.  This  writ  of  error  is  prose- 
cuted to  reverse  the  judgment  of  the  county 
court  of  Vermilion  county,  confirming  a  special 
tax  levied  to  pay  the  cost  of  certain  sewer  and 
water  sei-vice  pipes  laid  for  house  connections 
with  the  sewer  and  water  mains  in  Main  street, 
in  the  city  of  Danville.  Numerous  objections 
were  filed  and  insisted  on  in  the  county  court, 
and  are  renewed  here  by  plaintiffs  in  error, 
but  it  will  not  be  necessary  to  consider  them 
all  in  the  disposition  of  the  case. 

It  is  urged  in  the  objections,  among  other 
things,  that  the  several  water  and  sewer  serv- 
ice pipes  were  intended  for  the  use  of  the  in- 
I  dividual  lot  owners,  and  that  the  public  could 
'   have  no  access  to,  use  of,  or  interest  in  them 
whatever,  and  that,  therefore,  they  did  not  con- 
stitute a  "local  improvement,"  within  the  mean- 
(ing  of  the  law.     We  do  not  regard  this  objec- 
tion as  well  taken.     All  of  the  several  water 
and  sewer  connections  must  be  considered  to- 
j    gether,  as  one  entire  work,  and,  when  taken 
I    in  connection  with  the  use  of  the  mains  which 
\  had  already  been  provided,  a  local  improve- 
ment especially  useful  and  beneficial  to  the 
I   residents  on  the  contiguous  property,  and  gen- 
erally useful  and  beneficial  to   the  city,   w^as 
provided  for.     At  least,  the  city  council  must 
/  have  so  regarded  it  in  passing  the  ordinance, 
and  we  do  not  think  there  was  any  lack  or 
abuse  of  power  in  the  respect  mentioned.    War- 
ren V.  City  of  Chicago,  118  lU.  .320,  11  N.  E. 
218;   Louisville  &  N.  R.  Co.  v.  City  of  East  St. 
Louis,  i:^  111.  6.j9,  2o  N.  E.  9<52;    City  of  Chi- 
cago V.  Blair,  149  111.  310,  36  N.  E.  829,  and 
cases  cited. 

It  is  also  urged   that,  as  the  water  mains 
mentioned  in  the  ordinance  belonged  to  a  pri- 
vate company,   the  city  had   no   control  over 
them,    except  by  virtue   of  the   police  iwwer, 
and  by  virtue  of  rights  reserved  in  granting 
the  license  to  lay  the  mains  in  the  street,  and 
that  such  reserved  rights  did  not  include  the 
right  in  the  city  to  make  water  connections 
for   private   individuals,   as  a   local   improve- 
I  ment.     It  was  stipulated  in  the  court  below, 
'  between  the  parties,  that  the  water  main  Is 
(  maintained,  under  the  ordinances  of  the  city, 
I  for  the  use  of  the  city  and  its  inhabitants;   and 
'  the  question  is  prosontod   whether  the   mere 
I  fact  that  this  main  lielnngs  to  a  private  com- 
pany, though  locatwl  in  a  public   street,  and 
I  maintained  for  the  use  of  the  city  and  its  in- 


habitants, under  the  provisions  of  an  ordinance  I 
of  the  city,  renders  the  ordinance  and  the  pro-  I 
ceedings  under  it  in  this  case  void.  We  do  not  l 
think  it  does.  The  ordinance  under  which  the  I 
water  main  was  laid  and  is  maintained  was 
not  given  in  evidence,  and  we  must  presume, 
in  the  absence  of  any  evidence  to  the  contrary, 
that  the  city  has  preserved  and  guarded  its 
own  rights  and  those  of  its  inhabitants  in  its 
contract  with  the  water  company.  These  wa- 
ter-pipe connections  are  a  part  of  the  entire  im- 
provement, and  may  be  regarded  as  important 
in  making  the  sewer  and  its  connections  more 
available  and  useful  than  they  otherwise  would 
be.  In  making  this  improvement  so  that  it 
would  be  most  useful  and  beneficial  to  the 
public  and  the  propeity  owners,  the  city  had 
a  large  discretion,  with  the  proper  exercise  of 
which  the  courts  cannot  interfere.  Lightner  v. 
City  of  Peoria,  150  111.  87,  37  N.  E.  69.  It 
may  be  conceded  that,  to  make  the  water-pipe 
connections  available  or  beneficial,  it  was  the 
duty  of  the  city  council  to  provide  water  mains 
to  convey  water  to  them, — in  other  words,  to 
make  pi-ovision  for  a  supply  of  water;  other- 
wise, the  connections  would  be  useless,  and 
would  not  be  .an  impi'ovement  at  all,  of  oeneflt 
to  any  one.  Hutt  v.  City  of  Chicago,  132  111. 
352,  23  N.  E.  1010.  This  duty  the  city  has 
discharged,  and  doubtless  in  the  manner  that 
seemed  best  for  itself,  the  property  owners  in- 
terested, and  the  inhabitants  generally;  and 
whether  it  should  lay  the  main  and  furnish  the 
water  itself,  or  hire  a  private  person  or  cor- 
poration to  do  so,  is  a  question  for  the  city 
council  to  decide,  and  not  for  the  courts.  It 
might  be  that  if  the  contract  with  the  water 
company  were  in  the  record,  and  the  court 
could  see  that  its  terms  and  provisions  were 
such  as  to  make  the  ordinance  providing  for 
this  improvement  oppressive  and  unjust,  in 
levying  this  tax  to  make  connections  with  tlie 
water  main  which  would  never  be  of  benefit 
to  the  contiguous  property,  tliis  court  would 
hold  the  ordinance  invalid;  but  the  record 
shows  nothing  more  on  this  subject  than  that 
the  water  company  owning  the  main  maintains 
it,  under  ordinances  giving  it  such  right,  for 
the  use  of  the  city  and  the  inhabitants.  In 
Holmes  v.  Village  of  Hyde  Park.  121  111.  128, 
13  N.  E.  540,  followed  by  Hunerlierg  v.  Same, 
130  111.  1!')6,  22  N.  E.  486,  and  Leman  v.  City 
of  Lake  View,  131  111.  388.  23  N.  E.  346,  it  was 
decided  that  the  owner  of  property  specially 
assessed  for  the  puniose  of  improving  a  street 
cannot  be  heard  to  urge  as  an  objection  to  the 
assessment  that  the  proposed  street  is  located 
on  private  property,  and  that  the  city  has  not 
acquired  title  thereto.  And  it  was  held  that 
the  assessment  may  be  levied  before  the  title 
to  the  proposed  street  has  been  acquired  by 
condenuiation  or  otherwise.  In  Leman  v.  City 
of  I^ike  View.  131  111.  391,  23  N.  E.  .346,  this 
court  said:  "The  corpoi'ate  authorities  of  cit- 
ies'and  villages  may  levy  special  assessments 
for  the  inii)rovement  of  a  proiwsed  street  be- 
fore ac-;uiring  title  to  the  soil  by  condemnation 
or  otherwise,   and  may  afterwards   take   the 


WHAT  CONSTITUTES  A  "LOCAL  IMPROVEMEi^T." 


233 


necessary  steps  to  condemn  the  land,  and  have 
the  compensation  and  damaj?es  to  be  paid  as- 
sessed; and  the  owner  of  the  property  special- 
ly assessed  for  grading  and  paving  such  street 
cannot  interpose  the  objection  to  the  confii-ma- 
tlon  of  such  assessment  that  the  city  or  vil- 
lage had  not  acquired  title  to  the  soil  to  be 


graded  and  paved."  See,  also.  Village  of  Hyde 
Parlv  V.  Borden,  94  111.  26.  Those  cases, 
though  not  precisely  in  point,  lend  force,  by 
analogy,  to  the  views  here  expressed. i 


1  Part  of  the  opinion  is  omitted. 


234 


LOCAL.   ASSESSMENTS. 


BUCKLEY  V.  CITY  OF  TACOMA  et  aL 
(No.  1,233.) 

WINGATE  et  al.  v.  SAME  et  aL 
(No.  1,234.) 

(37  Pac.  441,  8  Wash.  253.) 

Supreme  Court  of  Washington.     June  27,  1894. 

Appeal  from  superior  court,  Pierce  county; 
W.  H.  Pritchard,  Judge. 

Action  by  J.  M.  Buckley  and  by  Robert 
Wingate  and  others  against  the  city  of  Ta- 
coma  and  others  to  set  aside  assessments 
for  local  improvements.  From  judgments 
for  defendants,  plaintiffs  appeal.    Reversed. 

Doolittle  &  Fogg,  for  appellant  Buckley. 
S.  C.  Milligan,  for  appellants  Wingate  et  al. 
F.  H.  Mm-ray  and  S.  A.  Crandall,  for  re- 
spondents. 

STILES,  J.  The  enabling  act  for  cities  of 
the  first  class  (Gen.  SL  §  520)  provides  that 
any  such  city  fi-aming  a  charter  for  its  own 
government  shall  have  power  (subdivision 
10)  "to  provide  for  making  local  improve- 
ments, and  to  levy  and  collect  special  as- 
sessments on  property  benefited  thereby,  and 
for  paying  for  the  same  or  any  portion  there- 
of;" (subdivision  13)  "to  determine  what 
work  shall  be  done  or  improvements  made  at 
the  expense,  in  whole  or  in  part,  of  the  own- 
ers of  the  adjoining,  contiguous,  or  proxi- 
mate property,  or  others  specially  benefited 
thereby,  and  to  provide  for  the  manner  of 
making  and  collecting  assessments  therefor." 
Section  52  of  the  charter  of  Tacoma  begins 
thus:  "The  city  government  of  Tacoma  shall 
have  powers,  by  ordinance  and  not  other- 
wise," repeating  the  language  of  the  stat- 
ute, with  the  exception  of  the  last  clause  of 
subdivision  13,  for  which  there  is  substitut- 
ed: "Provided  the  manner  of  making  and 
collecting  assessments  therefor  shall  be  as 
prescribed  in  this  charter."  But  when  the 
reader  of  the  charter  gets  to  article  12,  which 
is  a  complete  code  of  street  improvement 
and  assessment  law,  he  finds  that  not  an 
ordinance,  but  a  resolution,  is  required.  Ap- 
pellants make  a  strong  point  of  this,  and  in- 
sist that  anything  less  than  an  ordinance 
renders  the  whole  proceedings  leading  up 
to  a  street  assessment  void.  But  the  learned 
judge  who  heard  the  case  below  held  that  the 
specific  provisions  of  the  article  mentioned 
must  govern  the  general  ones  of  section  52, 
and  we  quite  agree  with  his  conclusion.  Al- 
though the  enabling  act  conferred  the  power, 
it  did  not  undertake  to  say  how  it  should  be 
exercised.  Very  Often  such  powers  are  made 
effective  through  general  ordinances,  but 
here  the  charter  framers,  and  thereby  the 
city  en  masse,  have  seen  fit  to  prescribe  even 
a  more  solemn  and  formal  law  on  the  subject 
by  providing  for  a  charter  system  which  is 
rigidly  binding  upon  both  the  legislative  and 
executive  powers  of  the  corporation.  We  do 
not  see  how  any  substantial  injiu-y  can  be 
done,  either,  through  this  consti'uction,  and 


it  remains  merely  to  examine  the  record,  to 
see  how  the  mandates  of  the  charter  have 
been  carried  out. 

The  charter  provides  for  the  establishment 
of  a  board  of  public  works,  with  a  clerk,  and 
specifically  delegates  to  it  many  executive 
duties,  and  the  appointment  of  sundry  oflB- 
cers,  among  whom  is  a  city  engineer,  who 
is  required  to  make  all  necessary  sui'veys  of 
public  work  under  the  direction  of  the  board. 
Article  12,  so  far  as  is  necessary  for  the  con- 
sideration of  this  case,  reads  as  follows: 

"Sec.  135.  AU  applications  for  establish- 
ing or  changing  the  grade  of  any  street  or 
streets,  the  improvement  of  public  gi'ounds 
or  buildings,  the  laying  out,  establishing, 
vacating,  closing,  straightening,  widening 
or  improvement  of  any  street,  road  or  high- 
way, or  the  laying  out  or  opening  of  any 
new  street  through  public  or  private  prop- 
erty, and  for  all  public  improvements  which 
involve  the  necessity  of  taking  private  prop- 
erty for  public  use,  or  where  any  part  of  the 
cost  or  expense  thereof  is  to  be  assessed  up- 
on private  property,  shall  be  made  to  said 
board,  and  such  work  or  improvement,  shall 
not  be  ordered  or  authorized  until  after  said 
board  shall  have  reported  to  the  city  coun- 
cil upon  said  application.  But  before  any 
work  or  improvements  as  above  contem- 
plated shall  be  commenced,  the  city  council, 
when  recommended  by  the  board  of  public 
works  shall  pass  a  resolution  ordering  that 
said  work  be  done;  provided  that  all  applica- 
tions for  the  pm-pose  of  changing  the  grade, 
or  of  making  any  improvements  upon  any 
sti'eet,  avenue  or  alley,  within  the  city  shall 
be  signed  by  at  least  three  resident  freehold- 
ers, owners  of  property  abutting  upon  said 
sti'eet,  avenue  or  alley;  provided,  however, 
that  the  city  council  may  without  petition  or 
recommendation  have  power  to  order  the  im- 
provement of  any  sti-eet,  avenue  or  alley,  or 
any  part  thereof  by  a  two-third  vote  of  all 
members  of  the  city  council. 

"Sec.  136.  Upon  the  adoption  or  passage  of 
any  resolution  by  the  city  council  for  the  im- 
provement of  any  street,  avenue  or  aUey,  the 
board  of  public  works  shall  cause  a  sm-vey, 
diagi'am  and  estimate  of  the  entire  cost 
thereof,  to  be  made  by  the  eity  engineer; 
said  diagram  and  estimate  shall  be  filed  in 
the  office  of  the  board  of  public  works  for 
the  inspection  of  all  parties  interested  there- 
in. The  clerk  of  said  board  shall  forthwith 
cause  a  notice  of  such  filing  to  be  published 
daily  for  ten  daj-s  in  the  official  newspaper; 
such  notice  shaU  contain  a  copy  of  the  said 
resolution  passed  by  the  city  council,  and 
must  specify  the  street,  highway,  avenue  or 
alley,  or  part  thereof,  proposed  to  be  im- 
proved, and  the  kind  of  improvement  pro- 
posed to  be  made,  together  with  the  esti- 
mated cost  and  expense  thereof,  and  also  a 
general  description  suflieient  for  indontifica- 
tion  of  the  projierty  to  be  charged  with  the 
expenses  of  making  such  improvements,  and 
that  if  sufficient  remonstrance  be  not  made 


PRELIMINARY  MATTERS. 


235 


before  the  expiration  of  ten  days  after  the 
date  of  the  last  i>ublication,  said  improve- 
ment will  be  m:ule  at  the  exi^onse  of  the 
owners  of  the  lots  and  parcels  of  land  de- 
scribed in  said  notice  as  hereinafter  provid- 
ed; but  if  within  ten  days  after  the  final 
publication  of  said  notice  the  persons  own- 
ing one-half  or  more  of  the  lots  or  parcels 
of  land  to  be  taxed  for  said  improvements 
shall  tile  with  the  clerk  of  the  board  of  pub- 
lic works  a  remonstrance  against  said  im- 
provement, grade  or  alteration,  the  same 
shall  not  be  made  at  the  expense  of  the  own- 
ers of  tlie  lots  so  described,  unless  the  city 
council,  by  a  two-thirds  vote  of  all  the  mem- 
bers thereof,  order  s;iid  improvement  made 
notwithstanding  such  remonstivance. 

"Sec.  137.  If  no  remonsti'ance  be  made  and 
filed  as  provided  in  the  last  preceding  sec- 
tion, then  owners  of  the  lots  and  parcels  of 
land  described  in  said  notice  shall  be  deem- 
ed to  have  consented  to  such  improvement; 
or  if  such  remonstrance  has  been  made  and 
filed,  and  the  city  council  has  ordered  such 
work  to  be  done  or  improvement  to  be  made, 
the  expense  thereof  shall  be  charged  to  the 
property  described  in  said  notice  in  the  man- 
ner as  hereinafter  provided,  and  the  board 
of  public  works,  shall,  at  its  earliest  con- 
venience, and  within  sis  months  thereafter, 
establish  the  proposed  grade  or  make  the 
proposed  improvement;  provided,  that  no  im- 
provement shall  be  made  when  the  estimated 
cost  thereof  shall  exceed  50  per  cent,  of  the 
assessed  value  of  the  property  to  be  assessed. 

"Sec.  13S.  Such  cost  and  expenses  of  mak- 
ing said  improvement  shall  be  assessed  upon 
the  adjoining,  contiguous  or  proximate  lots 
or  parcels  of  land  described  in  said  notice." 

Without  petition,  the  council  passed  this 
resolution,  by  imanimous  vote:  liesolved 
by  the  city  council  of  the  city  of  Tacoma, 
that  said  city  council  hereby  declares  its  in- 
tention to  improve  N  street,  in  Buckley's  ad- 
dition, from  Steele  street  to  Pine  street,  at 
the  expense  of  the  abutting  owners.  Grad- 
ing and  sidewalking.  To  be  done  by  day 
labor."  Tlie  board  of  public  works,  in  due 
course,  published  a  notice  as  follows:  "No- 
tice is  hereby  given  that  tlie  following  is  a 
true  copy  of  a  resolution  of  intention  passed 
by  the  city  council  February  27,  1892,  to 
wit:  'Resolved,  by  the  city  council  of  the 
city  of  Tacoma,  that  said  city  council  here- 
by declares  its  intention  to  improve  N  street, 
in  Buckley's  addition,  from  Steele  street  to 
Pine  street,  at  the  expense  of  the  owners  of 
the  lots  and  parcels  of  land  affected  by  said 
improvement,  according  to  the  city  charter; 
said  improvement  to  consist  of  grading  to 
an  established  grade,  and  building  sidewalks 
on  both  sides  thereof.  And  the  city  engineer 
is  hereby  ordered  to  make  a  survey,  diagram, 
and  estimate  of  the  said  improvement,  and 
file  the  same  in  the  oflSce  of  the  board  of 
public  works.'  That  the  survey,  diagram, 
and  estimate  of  the  cost  of  said  improvement 
were  filed  in  the  oflBce  of  the  board  of  public 


works  March  7,  1802,  by  the  city  engineer, 
and  the  estimated  cost  thereof  is  $1,850." 
The  filing  of  a  diagi'am  and  estimate  con- 
sisted in  the  engineer's  writing  in  an  esti- 
mate book  kept  in  the  office  of  the  board 
the  following: 

N  Street  in  Bucklcv's  Addition. 


Steele  to  Prospect  cut  78 

Prospect  to  Wliite     "  53D 

White  to  Oak  't  l,-!.>3 

Oak  to  Race  "  57.5 

Race  to  B'd'y  "  W 


mi  1,0.55 
"      157 


46 

317 


curb    810 
270 

"         29 
"       2iO 


Totals  2,737  1,.575  1,30'J 

2,136  lineal  feet  of  7    walk. 

80      "  "        "        "     aprons. 

34-t      "  "        6        "      Xings. 

2,i:;i;     "  "       gutters. 

424      "  ••        drain  box. 

1.800  feet  frontage. 

Estimate  March  7,  1893,  $1,8.50. 

No  remonstrance  of  the  owners  of  half  or 
more  of  the  lots  to  be  assessed  for  the  im- 
provement was  filed,  and  the  board,  with- 
out further  order  from  the  council,  proceeded 
to  make  the  improvement,  completing  it  Jime 
4,  1892,  at  a  cost  of  .$1,SS5.&4.  August  Gtb, 
following,  the  council  passed  an  ordinance 
(No.  GSS)  entitled:  "An  ordinance  providing 
for  the  improvement  of  N  street  from  Steele 
street  to  Pine  street,  creating  a  fund,  and 
providing  for  payment  by  assessment  upon 
the  adjoining,  contiguous,  and  proximate 
lots  or  parcels  of  land,  under  the  provisions 
of  the  city  charter  now  in  force,"— the  body 
of  this  ordinance  being  as  follows:  "Be  it 
ordained  by  the  city  of  Tacoma:  Section  1. 
That  N  street  in  the  city  of  Tacoma  be  im- 
proved from  Steele  street  to  Pine  street,  ac- 
cording to  the  plans  and  specifications  of  the 
city  engineer  on  file  in  the  office  of  the  board 
of  public  works.  Sec.  2.  That  a  ftmd  be, 
and  is  hereby,  created,  and  an  assessment 
be  levied  and  collected  upon  the  adjoining, 
contiguous,  or  proximate  lots  and  parcels  of 
land,  as  provided  by  the  city  charter  now 
in  force,  to  defray  the  cost  and  expense  of 
said  improvement,  according  to  the  provisions 
of  the  city  charter,  whicli  a.ssessment  shall 
be  a  lien  upon  the  property  liable  therefor. 
Sec.  3.  The  board  of  public  works  is  hereby 
authorized  and  directed  forthwith  to  enter 
upon  and  complete  said  improvement  by  day 
labor,  and  to  proceed  in  the  premises  as  pro- 
vided in  the  city  charter.  ♦  *  *."  In  these 
cases  the  appellants  sought  to  enjoin  the 
collection  of  the  assessments  levied  upon  lots 
owned  by  them,  but  the  relief  was  refused. 
Four  things  plainly  appear  from  the  record 
thus  set  out,  viz.:  (1)  No  resolution  was 
passed  ordering  any  improvement  made  on 
N  street.  (2)  The  engineer  did  not  file  a  dia- 
gram in  the  oflice  of  the  board.  (3)  Neither 
the  board  nor  its  clerk  published  a  notice 
containing  a  copy  of  the  resolution  that  was 
passed.  (4)  The  notice  contained  no  descrip- 
tion of  the  property  to  be  charged.  But  the 
respondents'  position  is  that  this  does  not 
matter,  as  something  was  done  which  was, 
in  each  particular,  intended  to  comply  with 


236 


LOCAL   ASSESSMENTS. 


the  mandatory  provisions  of  the  charter. 
The  question  is,  when  did  the  city  obtain 
jurisdiction  to  malce  this  improvement  and 
charge  abutting  property  with  the  expense? 
Obviously,  so  far  as  these  cases  go,  it  was 
wlien  such  proceedings  had  been  talven  by 
tlie  city  as  tliat  the  owners  of  the  property 
to  be  charged  had  had  the  notice  prescribed 
by  the  cliarter,  and  were  bound  to  remon- 
strate or  be  estopped.  To  bring  matters  to 
such  a  point  in  a  case  where  the  proceed- 
ing is  without  petition,  the  council  must 
have  ordered  tlie  improvement,  tlie  engineer 
must  have  filed  a  diagram  and  estimate,  and 
the  clerk  of  the  board  must  have  published 
the  notice. 

1.  The  Resolution.  The  initiative  step  is  the 
resolution  which  orders  the  improvement  to 
be  made.  No  such  order  can  be  intelligible 
which  does  not  reasonably  describe  the  kind 
of  improvement  intended,  not,  as  counsel  for 
respondents  suggests  would  follow,  with  such 
particularity  as  would  be  necessary  in  the 
making  of  a  contract  for  the  work,  but  with 
such  fullness  of  description  as  woxild  enable 
an  engineer  who  had  no  previous  familiarity 
with  the  matter  to  make  his  diagram  and 
estimate  after  survey  of  the  street.  Allow- 
ing that  the  verbless  plu-ase  used  in  the  reso- 
lution before  us  means  that  it  is  the  intention 
of  the  council  to  improve  the  street  by  grad- 
ing it  and  consti'ucting  sidewalklng,  the  query 
at  once  suggests  itself,  what  is  to  be  the  ex- 
tent of  the  grade,  and  what  kind  of  sidewalk 
is  proposed?  There  may  or  may  not  have 
been  an  established  grade  on  N  street,  and, 
if  there  were  such  a  grade,  it  may  or  may 
not  nave  oeen  the  intention  to  conform  to 
It  in  making  this  improvement.  There  is 
an  infinite  variety  of  sidewalks,  —  wood, 
iron,  stone,  brick,  concrete, — of  more  forms 
than  there  are  materials,  some  cheap  and 
some  expensive,  but  all  sidewalks.  How 
could  the  engineer  make  an  estimate  of  the 
cost,  or  the  board  construct  the  work,  with- 
out substantial  directions  in  these  particu- 
lars? The  answer  comes  promptly  with  the 
suggestion:  either  they  could  not  proceed 
at  all,  or  they  must  proceed  according  to 
their  own  ideas.  In  this  instance  they  took 
the  latter  course,  but  without  any  authority, 
since  it  lies  with  the  council  alone  to  prescribe 
the  method  of  making  all  such  improvements. 
S<.)mething  is  suggested  in  argument  as  to 
there  being  general  ordinances  of  the  city 
governing  the  improvement  of  streets,  which 
served  as  a  guide  to  the  engineer  and  board 
of  public  works.  There  is  nothing  of  this 
in  the  record,  and,  if  there  were  such  ordi- 
nances, they  should  have  been  referred  to  in 
the  resolution  in  such  a  way  as  tJiat  parties 
interested  would  know  where  to  look  for  a 
description  of  the  kind  of  improvement  in- 
tended. Streets  are  not,  and  usually  cannot 
be,  made  after  one  pattern,  like  the  inter- 
changeable parts  of  a  machine.  One  way 
of  making  an  improvement  may  be  substan- 
tially as  good  as  another,  and  may  serve  the 


purpose  just  as  well,  although  the  difference 
in  cost  may  mean  an  easy  payment  by  the 
owner  in  one  case  and  subst:intial  ruin  in  an- 
other. It  is  not  to  be  supposed  that  the 
coimcil  would  overlook  such  considerations, 
but  that  it  would  endeavor,  while  prosecut- 
ing a  reasonable  improvement,  to  lighten  the 
burden  of  expense  as  much  as  possible  in 
each  particular  case,  without  regard  to  any 
fixed,  inflexible  rule  of  procedm-e.  To  ac- 
complish this  it  must  know  the  cu-cumstances 
surrounding  the  proposed  work,  and  with 
this  knowledge  it  can  easily  prescribe  the 
general  features  of  the  improvement.  To  do 
otherwise  is  to  cut  off  from  property  owners 
all  knowledge  of  what  they  wiU  be  expected 
to  answer  for,  and  to  deprive  them  of  the 
opportunity  to  remonstrate  in  sufficient  num- 
bers if  they  see  fit.  But  the  worst  of  such 
a  loose  system  is  that  it  leaves  to  mere  ex- 
ecutive officers  the  exercise  of  a  large  dis- 
cretion which  the  charter  does  not  confer 
upon  them.  In  other  cases,  which  are  also 
before  us,  the  evil  of  such  a  system  appears 
clearly  exemplified.  But  perhaps  the  great- 
est defect  of  this  resolution  is  that,  while 
it  declares  the  intention  of  the  coimcil  to  im- 
prove N  street,  it  does  not  order  anything, 
and  fimiishes  no  basis  for  any  action  on  the 
part  of  the  engineer  and  board  of  public 
works.  Counsel  for  the  respondents  endeav- 
or to  excuse  the  method  of  procedure  by 
resolution  of  intention  by  saying  that  the 
council  had  merely  followed  a  habit  acquired 
under  the  charter  of  1886  (section  144).  But 
under  that  charter  the  council  itself  con- 
trolled the  work.  The  determination  of  the 
character  of  the  work  was  equally  necessary, 
and  no  such  work  could  be  done  at  all  at 
the  expense  of  the  property  except  upon 
petition  of  the  resident  owners  of  more  than 
one-half  of  it.  But,  be  that  as  it  may,  the 
present  charter  had  been  in  opei*ation  a  year 
and  a  half  when  these  proceedings  com- 
menced, and  the  "habit,"  imder  the  old  char- 
ter, cannot  be  accepted  as  an  amendment 
to  the  new  one.  The  resolution  of  intention 
should  have  defined  the  improvement  intend- 
ed, and  directed  the  board  of  public  works 
to  proceed  with  its  execution  as  defined, 
after  notice,  and  upon  the  failure  of  prop- 
erty owners  to  present  a  sufficient  remon- 
strance. 

2.  The  Diagram  and  Estimate.  The  charter 
prescribes  that  a  diagram  and  estimate  shall 
be  filed  after  a  survey  by  the  engineer.  So 
far  as  the  property  owner  is  concerned  with 
the  estimate,  the  gross  estimate  of  the  cost 
and  the  total  amount  of  frontage  would  seem 
to  be  about  all  he  is  interested  in,  since  the 
charter  method  of  payment  is  according  to 
the  front  foot,  and  he  can  be  charged  for 
nothing  in  excess  of  the  estimate.  These  two 
items,  therefore,  would  enable  him  to  calcu- 
late his  probable  expense.  But  the  diagram, 
if  it  serves  any  purpose  at  all  to  the  owner, 
must  be  intended  to  show  hi  in  how  the  Im- 
provement, when  completed,  will  probably  af- 


PRELIMINARY  MATTERS. 


237 


feet  his  property,  so  that  he  can  intelligently 
determine  whether  he  will  remonstrate  or 
not.  It  may  be  of  the  very  highest  impor- 
tance to  him  to  know  whether  he  is  to  be  left 
on  the  brink  of  a  cliff  or  at  the  foot  of  a 
trestle;  whether  the  assessment  he  will  be 
called  upon  to  pay  will  be  his  total  expense, 
or  whether  this  will  be  but  the  beginning  of 
a  large  outlay  necessary  to  protect  his  fi'ont 
or  restore  it  to  a  safe,  convenient,  and  decent 
condition.  Perhaps,  in  the  case  of  a  new  and 
uninhabited  street,  these  would  not  be  very 
important  matters  practically,  but  it  is  to  be 
remembered  that  this  charter  prescribes  a 
universal  rule  for  all  cases  of  street  changes 
and  improvements,  and  that  the  precedent 
laid  do^vn  as  a  nile  for  a  lot-booming  street 
out  in  the  woods  makes  the  same  rule  that 
will  be  applied  should  the  grade  of  the  most 
important  street  in  the  city  be  raised  or  low- 
ered. There  was  no  attempt  to  comply  with 
the  charter  in  the  matter  of  a  diagram  in  this 
instance,  and  therefore  one  of  the  purposes 
of  giving  a  notice  was  rendered  futile. 

3.  The  Notice.  By  the  notice  published  the 
owners  of  property  abutting  upon  N  street 
from  Steele  to  Pine  were  given  to  suppose 
that  the  council  had  passed  a  resolution 
which  was  never  before  that  body.  The 
framer  of  the  notice  appears  to  have  been 
apprehensive  that  the  resolution  as  pnssed 
was  defective  in  some  particulars,  and  there- 
fore he  changed  it,  and  added  to  it  matter 
enough  to  more  than  double  its  actual  length. 
The  publication  of  a  copy  of  the  resolution  in 
the  notice  is  intended  to  bring  home  to  the 
property  owner  information  that  the  council 
has  acted  in  a  matter  of  Interest  to  him,  and 
to  let  him  know  precisely  what  it  has  done 
and  proposes  to  do.  This  copy  to  be  pub- 
lished means  a  literal  copy,  according  lo  the 
usual  way  in  which  the  word  is  used,  and 
not  tlie  construction  which  the  clerk  of  the 
board  of  public  works  may  put  upon  the 
meaning  of  the  resolution.  However,  in  .ius- 
tice  to  the  clerk  in  this  instance,  it  ought, 
perhaps,  to  be  said  that  he  had  nothing  what- 
ever to  do  with  the  publication,  which  -svas 
made  by  the  individual  members  of  the 
board,  thus  adding  one  more  item  to  the  list 
of  cliarter  infractions.  The  notice  is  by  the 
charter  required  to  specify  the  kind  of  im- 
provement proposed  to  be  made,  and  1o  con- 
tain a  general  description  sutiicieut  for  iden- 
tification of  the  property  to  be  charged.  1  he 
tii'st  of  these  requirements  would  be  met  by 
the  copy  of  the  resolution  if  that  document 
contained  any  sufficient  specification;  tlie  sec- 
ond gives  rise  to  further  consideration.  The 
resolution  in  this  case  declares  the  intention 
to  be  to  improve  "at  the  expense  of  the  abut- 
ting owners."  The  notice  improves  upon  the 
original  by  the  plu-ase,  "at  the  expense  of  the 
owners  of  the  lots  and  parcels  of  land  af- 
fected by  said  improvement,  according  to  the 
city  charter."  Neither  is  a  correct  statement, 
critically  considered,  for  the  expense  is  not 
charged  upon  the  owners,  but  is  assessed  to 
land  without  regai'd  to  ownership.    But  this 


is  a  matter  of  small  consequence.  The  re- 
spondents' reply  is  that  section  13S  of  the 
charter  makes  it  oljligatory  upon  the  city  to 
levy  the  assessment  in  a  certain  way,  each 
lineal  foot  of  frontage  along  the  line  of  the 
improvement  paying  its  proportion  of  the  to- 
tal cost;  so  that  every  person  owning  proper- 
ty along  a  street,  knowing  the  law,  must 
know  that,  when  that  street  is  to  be  improved, 
his  property  will  necessarily  be  included  in 
the  assessment.  The  argument  is  well 
enough  as  far  as  it  goes.  But  what  is  it 
worth  in  the  face  of  the  charter  direction? 
According  to  this  theory,  when  the  charter 
required  the  notice  to  specify  the  street,  or 
part  thereof,  proposed  to  be  improved.  It 
should  have  stopped,  because  the  owner  could 
well  enough  reason  out  the  necessary  conclu- 
sion as  to  the  liability  of  his  property.  It 
went  on,  however,  and  specifically  required 
the  property  to  be  charged  to  be  described  in 
a  way  sufficient  for  identification;  and,  moi'e 
than  this,  the  very  first  clause  of  section  138 
is  in  these  words:  "Such  cost  and  expenses 
of  making  said  improvement  shall  be  as- 
sessed upon  the  adjoining,  contiguous  or 
proximate  lots  or  parcels  of  land  described 
in  said  notice,  in  the  following  manner;"  tlnis 
emphasizing  what  seems  to  us  to  have  been 
the  clear  intention,  viz.  that  each  owner 
should  have  laid  under  his  eyes  specific  in- 
formation that  his  property  was  to  be  as- 
sessed, without  any  resort  on  his  part  to  ar- 
gument or  conclusion.  And  this  case  fm-- 
nishes  an  excellent  illustration  of  the  value 
of  such  a  requirement,  for  where  lots  lie  end- 
wise to  a  street  they  are  to  be  assessed  their 
full  share  of  the  cost  according  to  frontage, 
but  where  they  lie  lengthwise  half  of  the  cost 
is  to  be  assessed  to  the  first  lot,  and  the 
other  half  to  other  lots  in  the  rear  to  the  cen- 
ter of  the  block.  Now,  it  happens  that  N 
street  runs  through  blocks  in  all  of  which  the 
lots  lie  lengthwise  along  it,  and  there  are 
sixteen  lots  in  each  tier,  so  that  one  lot  must 
pay  half  the  expense  assessed  on  a  huudred 
feet  frontage,  and  seven  lots  pay  the  other 
half.  Could  the  holder  of  a  deed  to  lot  27  in 
block  7,  which  is  tlie  sixth  lot  from  the  sti'eet, 
without  a  familiarity  with  the  lot  and  blook 
system  of  Buckley's  addition,  which  is  not  to 
be  presumed,  know  whether  his  lot  would  be 
within  the  assessment  district,  imless  he  hunt- 
ed up  a  plat?  Had  he  not,  under  the  express 
language  of  the  charter,  a  right  to  expect  to 
see,  in  a  notice  of  the  improvement  of  N 
street,  his  lot  specifically  named,  or  at  least 
"lots  2o  to  32,  inclusive,  in  block  7,"  which 
would  have  been  a  sufficient  description  in 
this  instance,  even  for  a  deed?  If  he  did  not, 
then  of  what  use  is  the  minute  particularity 
of  this  charter  in  the  matter  of  street  im- 
provements? If  the  city's  officials  can  over- 
ride these  plain,  mandatory  provisions  in  the 
many  particulars  already  pointed  out,  and 
improve  streets  ad  libitum,  and  the  property 
owner  be  bound  on  theories  of  substantial 
compliance,  estoppel,  waiver,  benefits,  or 
failure  to  tender  fair  value,  we  fail  to  see  any 


238 


LOCAL   ASSESSMENTS. 


sensible  reason  for  such  provisions  La  a 
charter.  But  the  people  who  pay  for  streets 
made  the  charter,  and,  while  they  granted  to 
the  public  authorities  most  liberal  powers, 
by  permitting  the  ai'biti'ary  improvement  of 
streets  at  local  expense,  they  emphatically 
reserved  to  themselves  the  right  to  have  three 
things  distinctly  brought  to  then*  knowledge, 
viz.;  (1)  What  improvement  it  is  proposed  to 
make;  (2)  what  the  cost  is  to  be;  (3)  what 
property  is  to  be  charged  with  the  expense. 
This  knowledge  they  declai-ed  must  be  af- 
forded in  a  certain  way,  and  after  that  they 
reserved  the  right  to  remonstrate,  and  to  have 
a  two-thirds  vote  of  the  council  to  overcome 
their  objections.  It  is  unnecessary  to  cite 
authorities  on  these  points.  The  A,  B,  C  of 
the  laws  of  municipal  corporations,  that  the 
power  to  levy  special  assessments  is  to  be 
construed  strictly,  that  the  mode  prescribed 
Is  the  measure  of  power,  and  that  material  re- 
quirements must  be  complied  with  before 
there  is  any  liability,  is  all  that  need  be  quot- 
ed. Spokane  Falls  v.  Browne,  3  Wash.  St. 
84.  27  Pac.  1077.  An  assessment  made  con- 
trary to  these  principles  is  void,  and  injimc- 
tion  lies  to  restrain  its  collection.  Dill.  Mun. 
Corp.  §§  803,  804;  Hill,  Inj.  §  539. 

4.  It  only  remains  to  determine  whether 
Ordinance  No.  688  had  any  effect  to  validate 
the  assessment.  That  it  did  not  must  be  ap- 
parent at  a  glance.  The  work  had  been  done 
beyond  recall,  and  no  remonstrance  of  prop- 
erty owners  could  have  any  possible  effect. 
That  it  gravely  ordered  the  board  of  public 
works  to  proceed  with  an  improvement  which 
had  been  completed  two  months  before  only 
made  its  weakness  the  more  apparent.  Why 
it  should  have  been  passed,  unless  through  a 
consciousness  on  the  part  of  the  council  that 
what  had  been  done  in  the  matter  was  wholly 
without  force  to  render  an  assessment  valid, 
it  is  hard  to  guess.  "Before  any  work  or  im- 
provement *  •  •  shall  be  commenced,  the 
city  council  *  ♦  *  shall  pass  a  resolution 
ordering  said  work  to  be  done,"  is  the  lan- 


guage of  the  charter,  and,  if  anything,  its  i 
most  mandatory  provision.    That  any  such  I 
proceeding  is  unavailing  as  a  ratification,  see 
Newman  v.  City  of  Emporia,  32  Kan.  45G,  4 
Pac.  815. 

We  regret  to  disagree  with  the  learned 
judge  who  passed  upon  these  cases  in  the  su- 
perior court,  and  who  prepared  a  careful  and 
extended  opinion,  which  has  been  presented 
to  us  by  counsel.  But,  either  the  point  was  . 
not  pressed,  or  the  opinion  fails  to  observe,  1 
that  the  objections  raised  by  the  appellants 
go  to  the  jurisdiction  of  the  city  to  make  the  I 
improvement  at  all  at  the  expense  of  abut-  ' 
ting  property,  by  reason  of  a  complete  failure 
to  carry  out  the  plain  provisions  of  the  char-  | 
ter,  which  were  conditions  precedent  to  the 
exercise  of  the  power.  Under  these  circum- 
stances there  is  no  greater  legal  or  equitable 
right  in  the  city  to  be  reimbursed  its  outlay 
than  there  is  in  a  trespasser  upon  land  who  I 
makes  valuable  improvements  and  is  dispos-  ' 
sessed  by  an  ejectment  suit.  It  has  done 
what  it  did  in  its  own  wrong,  without  previ- 
ously qualifying  itself  to  have  reimburse- 
ment; and  to  now  declare  that,  because  the 
law  upholds  local  assessments  on  the  theory 
of  benefits,  a  city  which  omits  the  steps  nec- 
essary to  bring  it  under  the  operation  of  that 
law  shall  have  the  same  right  to  enforce  its 
assessments  as  one  which  takes  those  steps, 
would  be  to  deprive  the  property  owner  of 
that  which  the  charter  in  distinct  terms  gives 
him,  viz.  a  right  to  be  heard  upon  the  ques 
tion  of  the  advisability  of  the  improvement 
before  it  is  undertaken.  There  may  be  cases 
in  which  such  circumstances  exist  as  should 
estop  an  owner  from  objecting  to  an  assess- 
ment in  any  event,  but  we  do  not  find  them 
in  these  cases.  The  judgments  are  reversed, 
and  the  causes  remanded  for  the  entry  of 
judgments  in  accordance  with  the  prayer  of 
the  complaints. 

DUNBAR,  0.  J.,  and  ANDERS  and  SOOTT, 
JJ.,  concur. 


PRELIMINARY  MATTERS. 


239 


CITY  OF  ATLANTA  v.  GABBETT. 

(20  S.  E.  30G,  93  Ga.  20G.) 

Supreme  Court  of  Georgia.     Nov.  G,   1893. 

Error  from  superior  court,  Fulton  couuty; 
Marsliall  J.  Clarke,  Judge. 

retition  by  Sarah  E.  Gabbett  against  the 
city  of  Atlanta  to  restrain  the  collection  of 
executions  issued  to  enforce  the  payment  of 
assessments  for  sewer  construction.  From 
a  judgment  entered  on  a  verdict  for  plaintiff, 
and  from  an  order  denying  a  new  trial,  de- 
fendant brings  error.     Attirmed. 

The  following  is  the  official  report: 

Mrs.  Gabbett,  by  her  equitable  petition, 
sought  to  enjoin  the  city  of  Atlanta  from  col- 
lecting two  executions, — one  issued,  to  enforce 
an  assessment  against  her  property  on  ac- 
count of  the  construction  of  what  is  known 
as  the  "Butler  Street  Branch  Sewer"  through 
her  property  in  Atlanta,  and  the  other  issued 
to  collect  a  similar  assessment  on  account  of 
the  construction  of  what  is  known  as  the 
"Kice  Sti-eet  Sewer"  through  her  property-. 
The  jiu'y,  under  the  direction  of  the  court, 
made  a  verdict  in  favor  of  enjoining  alto- 
gether the  collection  of  the  first  execution 
mentioned,  and  of  enjoining  the  collection  of 
one-half  the  assessment  remaining  after  the 
deduction  of  certain  admitted  overcharges 
on  account  of  the  construction  of  the  Rice 
street  sewer.  The  motion  for  new  trial  made 
by  defendant  was  overruled,  and  it  exceptetl. 
The  motion  contained  the  grounds  that  the 
verdict  was  contrary  to  law,  evidence,  etc. 
Also,  because  the  court  erred  in  admitting 
in  evidence,  over  defendant's  objection,  tlie 
testimony  of  G.  W.  Adair,  to  the  effect  that 
only  a  small  part  of  the  area  of  the  plain- 
tiff's property  was  susceptible  to  direct  drain- 
age by  the  sewers  constructed  by  defendant 
through  plaintiff's  property,  and  for  the  con- 
struction of  which  the  executions  in  question 
were  issued.  Defendant's  objection  was  that 
the  rate  and  method  of  the  assessments 
against  the  property  of  plaintiff  for  the  build- 
ing of  the  sewers  were  fixed  by  the  act  of 
November  8,  18S9,  amending  the  charter  of 
Atlanta,  and  that  it  was  not  competent  for 
plaintiff,  under  the  pleadings,  to  have  th<> 
question  of  the  reasonableness  or  unreason- 
ableness of  these  statutory  assessments  sub- 
mitte<l  to  the  jury  on  the  testimony  of  wit- 
nesses. It  appears  from  the  petition  of 
plaintiff  tliat  the  question  of  the  reasonable- 
ness of  these  assessments  is  raised  by  her 
petition,  it  being  alleged  by  her,  in  the  peti- 
tion, that  the  sewers  are  not  in  any  sense 
such  as  can  be  used  by  her  for  draining  off 
the  water  that  falls  upon  her  property,  or  for 
the  connection  of  private  sewers  from  her 
property;  that  for  the  consti'uction  of  one  of 
the  sewers  an  assessment  has  been  made 
against  her  property  for  429  feet,  whereas  a 
portion  of  it  does  not  pass  through  her  prop- 
erty at  all,  leaving  her  property  entirely,  and 
re-entering  it  again,  but  nevertheless  all  char- 
ged   to   her   from    where   it  first   enters,    to 


where  it  last  leaves,  her  property;  and  that 
there  is  as  much  incidental  benefit,  if  any  at 
all,  to  adjoining  property,  as  to  her  prop- 
erty, the  sewer  being  constructed  just  a  lit- 
tle on  her  side  of  the  line,  etc.  The  testi- 
mony was  also  objected  to  on  the  ground 
that,  if  the  reasonableness  of  the  assessments 
could  be  inquired  into  by  the  jury  at  all,  it 
was  only  competent  for  plaintiff  to  prove  the 
facts  as  to  the  location  and  description  of  the 
property,  the  location  and  character  of  the 
sewers,  the  capacity  of  the  property  for  sub- 
division and  improvements  and  the  like,  and 
leave  the  jury  to  draw  their  own  conclusions 
as  to  the  feasibility  of  draining  the  area 
of  plaintiff's  lot  by  means  of  these  sewers. 
Defendant  alleges  that  the  court  erred  in 
overruling  these  objections,  and  admitting 
the  testimony  of  this  witness  and  the  wit- 
nesses Williams  and  Smith  to  the  same  ef- 
fect, and  also  that  of  the  witness  Wilson  as 
to  the  size  and  cost  of  lateral  sewers  which 
would  be  necessary,  in  the  opinion  of  the  wit- 
ness, to  drain  certain  parts  of  the  plaintiff's 
property.  Error  in  rejecting  testimony  of- 
fered, by  defendant,  tending  to  show  that  the 
strip  of  ground  belonging  to  plaintiff  lying 
on  the  north  side  of  Rice  sti*eet  sewer,  while 
too  narrow  or  shallow  to  be  cut  into  building 
lots,  had  been  greatly  enhanced  in  value  by 
reason  of  the  constimction  of  the  sewer,  on 
account  of  its  lying  immediately  between  oth- 
er vacant  property  fronting  on  the  south  side 
of  Pine  street  and  the  line  of  said  sewer; 
defendant  oft"ering  to  prove  that  the  strip  of 
ground  in  question  was  worth  more  to  the 
owners  of  this  adjoining  vacant  property  than 
before  the  construction  of  the  sewer,  and  be- 
cause of  such  sewer  construction.  Error  in 
instructing  the  jury  to  retiu-n  a  verdict  en- 
joining defendant  from  further  prosecuting 
*he  execution  for  $1,179  on  account  of  the 
consti'uction  of  the  sewer  known  as  the 
"Butler  Street  Branch  Sewer."  This  insti-uc- 
tion  was  based  on  an  alleged  insufficiency  in 
the  description  of  the  size  of  the  sewer  in  the 
notice  published  after  the  introduction  of  the 
ordinance  under  which  the  sewer  was  built, 
and  before  the  passage  of  the  ordinance.  In 
this  notice  it  was  stated  that  the  sewer  was 
to  be  of  "various  diameters."  It  was  agreed 
on  the  trial  that  both  this  notice  and  the 
other  attached  to  defendant's  answer,  mark- 
ed "Exhibit  A,"  were  regularly  published 
as  required  by  law,  and  this  ruling  of  the 
court  was  based  solely  on  the  absence  of  a 
more  specific  statement  of  the  size  of  the 
sewer  in  the  notice  first  mentioned,— Exhibit 
B.  It  appears  from  defendant's  answer  that 
an  ordinance  for  the  construction  of  this  serv- 
er was  introduced,  and  the  notice  Exhibit  A 
was  given,  in  which  it  was  stated  that  the 
sewer  was  to  be  from  seven  fcK^t  nine  Indies 
to  nine  feet  in  diameter,  of  brick  and  stone, 
etc.,  but  for  want  of  accessible  funds  the 
construction  of  this  sewer  could  not  be  pro- 
vided for  under  said  ordinance;  but  after- 
vrards   anuUier   ordinance   for   the   consuiic- 


240 


LOCAL  ASSESSMENTS. 


tion  of  the  same  was  introduced,  and  the  no- 
tice Exliibit  B  was  given.  Defendant  al- 
leges that  the  instruction  was  erroneous,  for 
the  following  reasons:  (1)  So  much  of  the 
act  of  1SS9  as  prescribes  that  notice  shall  be 
published  after  the  introduction  of  the  ordi- 
nance, and  before  its  passage,  is  directory 
merely,  so  that  the  notice  published  before 
the  introduction  of  the  ordinance  (that  in  Ex- 
hibit A)  was  sufficient.  (2)  The  question  of 
compensation  for  the  right  of  way  of  the 
eewer  not  being  in  issue  in  this  case,  and  the 
amount  of  the  assessment  being  fixed  by  stat- 
ute at  90  cents  per  front  foot  on  each  side  of 
the  sewer  constructed  tlirough  plaintiff's 
land,  and  the  amount  of  said  assessment  be- 
ing stilted  in  the  notice  in  question;  and  it 
being  admitted  by  counsel  for  plaintiff  that 
the  sewer  was  of  suitable  size  and  character 
for  the  proper  drainage  of  this  propei-ty  and 
the  section  of  the  city  it  was  constructed  to 
di'ain;  and  it  being  in  evidence,  plaintiff  be- 
ing a  nonresident,  that  her  resident  agent 
never  read  either  of  the  advertisements,  but 
had  actual  notice  of  the  facts  that  the  sewer 
was  to  be  constructed  and  was  being  con- 
structed, and  of  its  size  and  general  charaC' 
ter;  and  it  being  admitted  that  the  sewer 
cost  more  than  $10  per  lineal  foot  to  build, 
and  the  evidence  being  uncontradicted  that 
the  construction  of  the  sewer  had  enhanced 
the  market  value  of  plaintiff's  property  in  a 
greater  sum  than  the  amoimt  of  the  assess- 
ments against  the  property  on  accoimt  of  the 
construction  of  the  sewer;  and  it  being  also 
shown  that  the'  notice  Exhibit  A,  which  had 
contained  a  statement  of  the  size  of  the  sew- 
er, was  published  in  October,  1890;  and  the 
act  of  1889  providing  that  a  substantial  com- 
pliance with  the  requirement  as  to  notice 
should  be  sufficient,— the  court  should  have 
held  that  the  omission  of  the  specific  state- 
ment of  the  size  of  the  sewer  in  the  notice 
Exhibit  B  was  immaterial,  or  should  have 
submitted  to  the  jury,  as  requested  by  de- 
fendant, the  question  of  whether  the  notice 
given  by  both  advertisements,  in  the  light  of 
all  the  facts  and  circumstances,  amounted 


to  substantial  compliance  with  the  act  of 
1889.  Error  in  directing  a  verdict  for  plain- 
tiff as  to  the  execution  for  $1,179,  for  the  fur- 
ther reason  that  actual  notice  to  plaintiff's 
agent,  as  shown  by  his  testimony,  dispensed 
with  the  necessity  for  constructive  notice  to 
plaintiff  by  publication,  or  at  least  such  ac- 
tual notice  aided  the  published  notice  to 
such  an  extent  as  to  make  the  omission  of  a 
specific  statement  of  the  size  of  the  sewer  in 
the  last  published  notice  harmless  to  plain- 
tiff, and  immaterial.  The  agent  in  question 
testified  that  he  was  only  plaintiff's  agent  for 
paying  tax  on  the  property;  that  he  was  her 
agent  when  this  sewer  was  built;  that  he 
knew  it  was  going  to  be  built,  and  when  it 
was  being  built,  and  took  no  steps  to  try  and 
stop  it;  that  he  corresponded  very  li'^tle  with 
plaintiff  about  the  property,  exceiot  about 
paying  taxes,  etc.;  and  that  he  saw  neither 
of  the  notices,  and  made  no  objection  to  the 
construction  of  the  sewer.  Error  in  submit- 
ting to  the  jury  the  question  of  the  reason- 
ableness of  the  assessments  against  plain- 
tiff's property  on  account  of  the  construction 
of  the  Rice  street  sewer,  there  being  no  ques- 
tion of  the  sufficiency  of  the  notice  published 
as  to  that  sewer.  The  effect  of  the  instruc- 
tion as  to  this  assessment,  defendant  alleges, 
was  to  altogether  disregard  the  i^te  and  ba- 
sis of  assessments  fixed  by  the  act  of  1889, 
under  which  the  sewer  was  constructed,  and 
leaves  the  jury  free  to  adopt  a  different  basis 
for  allowing  or  disallowing  the  assessments 
made  against  plaintiff's  property  than  that 
made  by  that  statute.  Defendant  says  the 
instruction  was  erroneous  because  the  assess- 
ments were  valid  in  law,  and  ought  to  have 
been  upheld  by  the  court,  and  not  submitted 
to  the  jury  at  all,  or,  if  at  all,  then  only  in 
so  far  as  to  ascertain  from  the  evidence  that 
they  were  made  in  conformity  to  the  act  and 
the  city  ordinance. 

J.  A.  Anderson  and  Fulton  Colville,  for 
plaintiff  in  error.  Hall  &  Hammond,  for  de- 
fendant in  error. 

PER  CURIAM.     Judgment  affirmed. 


METHODS  OF  APPORTIONMENT. 


241 


STATE  (RAYMOND'S  ESTATE  ct  al.,  Pros- 
ecutors) V.  MAYOR,  ETC.,  OF  BOROUGH 
OF  RUTHERFORD. 

(27  Atl.  172,  55  N.  J.  Law,  441.) 

Supreme  Court  of  New  Jersey.     June  8,  1893. 

Certiorari  by  the  state,  at  the  prosecution 
of  the  estate  of  Aaron  Raymond  and  othere, 
against  tlie  mayor  and  common  council  of 
tlie  borougli  of  Rutherford,  to  review  the 
final  assessment  of  grading  Union  avenue 
from  Erie  avenue  to  the  Passaic  river,  in 
the  borough  of  Rutherford.  Assessment  sus- 
tained. 

Argued  February  term,  1893,  before  DE- 
PUE  and  LIPPINCOTT,  JJ. 

Addison  Ely,  for  prosecutoi-s.  Copeland  & 
Luce,  for  defendants. 

LIPPINCOTT,  J.  This  certiorari  brings 
up  for  review  the  final  assessment  for  grad- 
ing Union  avenue  from  Erie  avenue  to  the 
Passaic  river,  in  the  borough  of  Rutherford. 
The  whole  length  of  the  improvements  was 
13,409.90  feet.  There  are  two  plots  as- 
sessed to  the  prosecutors.  The  plot  on  the 
nortliwesterly  side  of  the  avenue  has  a  front- 
age thereon  of  2,0G5.0G  feet,  and  is  desig- 
nated as  "Plot  No.  47"  on  the  assessment 
map,  and  is  assessed  for  the  sum  of  .?1,497.- 
16.  The  plot  on  the  southeasterly  side  of 
the  avenue  has  a  frontage  thereon  of 
2,002.50  feet,  and  is  designated  as  "Plot  No. 
81"  on  tlie  assessment  mai).  and  is  assessed 
for  tlie  sum  of  ^1,495.31.  -Tlie  total  cost  and 
expense  of  the  improvement  amounted  to 
the  sum  of  $9,700.43.  The  whole  of  the 
amount,  with  the  exception  of  $183.44,  was 
assessed,  as  benefits  received,  upon  the  own- 
ers of  lands  claimed  to  have  been  benefited. 
This  sum  of  $183.44  was  by  the  commission- 
ers of  a.sse«sments  adjudged  to  be  an  excess 
of  benefits,  and  was  placed  upon  the  bor- 
ough at  large.  The  reasons  for  setting  aside 
the  assessment  will  be  taken  up  in  the  order 
in  which  they  were  discussed  in  the  argu- 
ment. 

The  sixth  reason  or  objection  is  that  the 
commissioners     making   the    assessment   are 
taxpayers  in  the  borough,  and  therefore  are 
'  not  disinterested.     Tlie  objection  is  not  well 
founded.     By    the   fifth   section   of   the    act 
entitliHi  "A  furtlier  supjilement  to  an  act  en- 
titled 'An  act  for  tlie  fonnation  of  borough 
governments  approved  April  5,  1878,' "  which 
further  supplement    was  approved   April   1, 
/  1887,  (Laws  1887,  p.  120,)  it  is  provided  "tliat 
'  the  mayor  and  council   shall  appoint,   three 
dLsinterestetl  freclioldcrs  of  said  borough,  re- 
I  siding  in  different  w\ards,  if  tlie  borough  be 
divided  into  waivls,  commissionors  to  make 
,'  the  sissessment  of  the  costs  and  expenses  of 
'    such  improvement  or  woi-k  done  in  the  man- 
ner  herein   contemplated."     It   is   not   con- 
,  tended    that    tliis    provision    of    the    st^itute 
'  was    not    follow o<l    in    the    appointment    of 
tliese  commissioners.     Tliis  statute  was  ap- 
proved in  the  case  of  State  v.  Mayor,  etc., 
ABB.CORP.— 16 


of  Rutherford,  at  tlie  June  term,  1S90,  of  this 
court.  A  memorandum  of  that  decision  is 
fikxi.     19  Atl.  Rep.  972. 

The  seventh  objection  is  that  the  com- 
missioner admitted  tliat  tliey  favored  mak- 
ing every  street  pay  for  its  own  improve- 
ments,— that  is,  pay  for  itself,  without  re- 
gard to  benefits.— and  that,  therefore,  they 
are  not  disinterested  commissioners.  It  ap- 
pears from  the  evidence  of  Mr.  Ely,  a  wit- 
ness in  the  case,  that  after  the  making  and 
filing  of  the  xvport  of  assessments,  and  upcm 
the  hearing  of  objections,  at  the  time  ap- 
pointcxi  for  such  hearing,  in  the  discussion 
AA-liich  ensued,  tlie  chairman  of  the  commis- 
sioners said  to  him  that  it  was  the  policy  of 
the  borough  to  assess  tlie  cost  of  the  im- 
provement of  the  streets  upon  the  streets  so 
improved,  and  they  calculated  to  make  each 
street  pay  for  its  own  improvement,  and 
that  at  this  time  there  was  no  dissent  ex- 
pressed by  tlie  other  commissioners.  It 
does  not  appear  that  their  attention  was 
again  called  to  the  matter,  in  connection 
with  this  street  improvement,  or  tliat  it  was 
anytliing  more  than  a  casual  remark,  and  it 
is  not  such  an  expression  as  would  warrant 
a  legal  conclusion  that  the  coiiimissionei"s 
were  not  disinterested.  It  might  well  be  f 
found,  upon  examination  of  all  the  circum-  ! 
stances,  that  the  policy  of  making  each  street 
in  tlie  borough  of  Rutherford  pay  for  its 
own  improvement  might  not  be  discordant 
to  the  application,  praetic;illj',  of  the  principle 
that  for  such  improvements  lands  sliould  be 
asst^ssed  'only  in  proportion  to  benefits  re- 
ceived. Union  avenue  was  an  old  street  or 
road,  and  a  thoroughfare  between  Newark 
and  Passaic,  witli  the  exception  of  that  part 
which  crosses  the  lands  of  the  prosecutors. 
This  old  i*oad  or  old  street  extends,  as  will 
be  seen  by  referring  to  the  map,  from  what 
is  known  as  "Erie  Avenue,"  running  along 
the  Erie  Railroad  to  Rivereide  avenue.  It 
connects  with  the  Newark  and  Hackensack 
road,  on  the  east  of  the  borough,  and  with 
the  river  road,  which  leads  from  Newark 
to  Passaic.  It  is  one  of  the  two  thorough- 
fares in  the  borough  of  Rutherford.  It  is 
the  principal  road  between  Rutlierfoi"d  and 
Passaic.  The  river  road  is  wliat  is  now 
marked  on  the  assessment  map  as  "Riverside 
Avenue."  It  is  about  2,000  to  2.100  feet 
from  the  point  where  Rivereide  avenue  in- 
tersects Union  avenue  to  the  river.  The 
lauds  of  the  prosecutore  lie  west  of  River- 
side avenue,  and  extend,  as  sliown  on  the 
map  of  this  section  of  country,  from  the 
Erie  Railroad,  on  the  north,  to  about  a  mile 
to  the  south.  These  lands  are  bounded  on 
the  west  by  tlie  river,  and  tlie  tract  of  their 
liind  through  which  Union  avenue,  as  now 
graded,  extends,  contains  about  150  acres. 
Union  avenue,  before  it  was  graded,  did  not 
extend  through  these  lands,  but  ended  at 
Riverside  avenue.  Before  Union  avenue 
was  graded  tliere  existetl  no  street  through 
their  lands.  There  w^as.  as  shown  by  the 
evidence,  a  sort  of  a  pass;ible  road  or  drive' 


242 


LOCAL   ASSESSMENTS. 


way  through  the  lands  of  the  prosecutors 
from  Rivei-side  avenue  to  the  river,  a  little 
to  the  north  of  the  middle  of  their  property. 
When  it  was  contemplated  to  gi-ade  Union 
avenue,  tlie  prosecutoi-s  dedicated  to  the 
borough  of  Rutherford  the  land  needed  for 
its  extension  from  Rivereide  avenue,  some- 
times called  "River  Road,"  to  the  river,  a 
dedication  practically  coinciding  with  the  old 
driveway  already  there.  The  commission- 
ers' map  of  the  improvement  through  the 
lands  of  the  prosecutors  shows  a  number  of 
cross  streets  intersecting  Union  avenue. 
These  appear  to  have  been  made  in  accord- 
ance with  a  plan  of  development  of  this 
property  by  the  prosecutoi"s.  None  of  these 
cross  streets  are  yet  pubUc  streets,  by  dedi- 
cation or  otherwise.  It  is  shown  that  the 
prosecutors  had  done  some  filling  and  grad- 
ing in  reference  to  the  lines  of  these  streets. 
There  can  be  but  little  question  that  this  im- 
provement renders  the  lands  of  the  plaintiffs 
much  more  available  for  the  only  purpose  for 
which  they  hold  them.  Before  this  improve- 
ment these  lands  were  almost  entirely  with- 
out any  outlet,  and  unavailable.  It  is  ap- 
parent from  the  evidence  that  the  whole  of 
this  large  tract  of  land  was  held  by  the  pros- 
ecutors with  the  expectation  of  bringing  it 
Into  market.  The  feasibility  of  the  erection 
of  a  bridge  over  the  Passaic  river  at  the  end 
of  Union  avenue,  as  now  graded,  has  been 
much  discussed  by  them.  The  situation  of 
the  lands,  as  shown,  in  connection  with  their 
<?ommunieation  with  the  borough  of  Ruther- 
ford and  other  places,  indicates  at  once  that 
this  improvement  is  one  very  desirable  to 
the  lands  of  the  prosecutors.  The  prose- 
cutors themselves  dedicated  the  lands  for 
this  improvement  by  deeds  of  dedication 
formally  executed  and  delivered  to  the  bor- 
ough, and  also,  with  others,  foi-mally  peti- 
tioned for  this  improvement,  and,  as  is  shown 
by  the  evidence,  expected  to  be  quite  heavily 
assessed  for  its  benefits. 

I  notice  that,  in  the  argument  and  brief 
of  counsel  for  the  prosecutors,  it  is  con- 
tended that  the  assessment  includes  various 
items  of  expenses  not  properly  chargeable 
to  the  landowners  assessed.  It  appears 
that  no  objection  was  taken  on  this  ground, 
although  the  prosecutors  appeared  before 
the  mayor  and  council  before  the  report  was 
confirmed.  Upon  the  argument,  objections 
were  urged  to  certain  items,  amounting  in 
all  to  $185.19.  This  expense  of  $185.19  con- 
sists of  four  items  in  the  statement  of  costs: 

(1)  March  16.    Payment  to  W.  N.  Ja- 

cobus, tenuwrary  walks $  69  00 

(2)  November    16.    Payment    to    Mc- 

Kiniiey  for  relayinsr  drain 21  00 

(3)  DeceinlxT    111.     Lotjal    expenses    in 

makinjj    searches    and    procuring 
releases    75  00 

(4)  January    18.    Paid    Galloway    for 

curbing  and  guttering 20  19 

Total    $1S5  19 

The  making  of  the  drains,  walks,  and 
curbing  and   guttering    was   eutii'ely    neces- 


sary to  the  proper  grading,  as  shown  by  the 
evidence  on  pages  93,  94,  and  96  of  the  tes- 
timony. The  item  of  legal  expenses  was 
for  services  in  relation  to  tha  dedication  of 
that  portion  of  Union  avenue  extending 
through  the  prosecutors'  lands.  These  ex- 
penses were  incident  to  the  work  of  grading 
the  street.  Vanderbeck  v.  Jersey  City,  2'j 
N.  J.  Law,  448;  Hand  v.  City  of  Elizabeth, 
30  N.  J.  Law,  3G5;  Id.,  31  N.  J.  Law,  551; 
Davis  V.  City  of  Newark,  54  N.  J.  Law,  144, 
23  Atl.  Rep.  276.  I  think  these  items  are 
properly  included  in  the  costs  and  expenses 
of  the  grading.  It  is  to  be  noticed  that  there 
is  no  reason  filed,  covering  tliis  objection. 

The  second  reason  is  that  the  commis- 
sioners, in  making  the  assessment,  have  not 
included  therein  all  the  lands  benefited  by 
the  improvement.  The  commissionei-s,  im- 
der  their  oaths,  certify  that  no  other  lands, 
except  those  assessed,  were  benefited;  and 
their  judgment,  so  far  as  the  general  area 
over  which  the  assessment  extends,  remains 
imassailed  by  any  evidence  in  the  case.  The 
commissioners  determined  that  no  other 
lands  than  those  fronting  on  Union  avenue 
were  benefited.  I  think  this  judgment  is 
not  contradicted  by  the  evidence  on  the  part 
of  the  prosecutors,  and,  so  fai-  as  the  evi- 
dence on  the  part  of  the  defendants  is  con- 
cerned, their  judgment  is  fully  confirmed. 
The  testimony  of  the  commissioners  upon 
this  point  is  fully  siistained  by  the  evidence 
of  those  witnesses  whose  judgment  in  this 
matter  can  be  regarded.  There  were  only 
four  particular  plots  to  which  the  prosecu- 
tors raised  any  question  in  respect  to  this 
reason.  One  was  a  strip  of  about  five  feet 
wide,  supposed  to  belong  to  Mr.  Jackson. 
It  is  very  difficult  to  determine  whether  this 
is  included  in  the  assessment  or  not  When 
he  received  his  assessment  bill  for  benefits 
to  his  plot  of  land,  he  discovered  he  had 
been  assessed  for  67  feet,  instead  of  72  feet, 
and  under  the  evidence  I  cannot  ascertain 
that  he  owns  any  more  than  67  feet.  There 
were  three  small  plots  in  the  rear  of  plots 
60,  72,  and  76,  which  the  prosecutors  as- 
sert shoiild  have  been  assessed,  on  the 
ground  that  aU  lands  to  the  depth  of  150 
feet  should  have  been  assessed.  I  see  no 
reason  why  the  judgment  of  the  commis- 
sionei*s  should  be  disturbed  in  this  matter. 
The  evidence  is  quite  convincing  that  these 
plots  were  not  beuefited.  There  is  some  evi- 
dence of  benefits  received  by  tliem.  The 
conclusion  reached  is  that  they  were  not 
benefited,  but,  if  so,  the  utmost  assessment 
which  could  be  laid  upon  all  these  plots  of 
land,  according  to  tlie  evidence,  would  not 
exceed  the  sum  of  $75.  The  judgment  of 
the  commissioners  must  stand.  There  is  no 
convincing  evidence  against  it.  Hegeman  v. 
City  of  Passaic,  51  N.  J.  Law.  113,  10  Atl. 
Kep.  62;  P.iu-lington  v.  Atlantic,  49  N.  J. 
Law,  408,  8  All.  Rop-  HI-  Assuming  the.se 
parcels  should  have  been  assessed,  $75 
would  have  been  the  utmost  assessment  for 
the  whole  four  of  them,  and  the  assessment 


METHODS  OF  APPORTIONMENT. 


243 


ii gainst  the  borough  at  largo  was  greater 
than  this,  and  therefore  no  injury  has  arisen 
to  tlie  prosecutor  1)3"  this  omission.  Right- 
er  V.  City  of  Newarlc,  45  N.  J.  Law,  109; 
Davis  V.  City  of  Newark,  54  N.  J.  Law, 
144,  23  Atl.  Rep.  276. 

In  the  tliird  reason  the  objection  urged 
/is  that  the  commissioners  have  not  defined 
(the  extent  of  the  kinds  of  tlie  prosecutors 
'  and  other  landowners  fronting  on  said 
avenue,  upon  wliich  the  assessment  is  made 
a  lien.  Now,  whetlier  the  lands  of  the 
prosecutors  have  been  benefited  or  not,  or 
wliether  assesseil  in  excess  of  benefits,  is 
a.  question  to  be  discussed  by  itself,  and  so 
can  the  question  whether  the  frontage  as- 
sessment is  upon  correct  principles  or  not, 
but  tlie  evidence  and  the  report  of  the  com- 
nnssionei"s  here  answer  fully  this  objection. 
'  The  plots  of  tlie  prosecutors'  lands  are  laid 
down  upon  the  assessment  map,  and  re- 
ferred to  in  the  report  of  the  commissioners 
by  plot  numbers,  as  laid  down  on  the  map, 
and  tliey  show  the  frontage  of  each  lot  on 
either  side  of  Union  avenue.  The  map  is 
sealed,  and  the  dimensions  of  the  plots  as- 
sessed are  determined  and  marked  exactly, 
the  same  as  the  plots  of  other  landowners 
fronting  the  improvement.  The  contention 
of  the  prosecutors  is  that  the  assessment, 
even  if  correctly  laid  as  to  its  distribution 
on  the  frontage,  is  a  lien  upon  large  tracts 
of  lands  of  the  prosecutors,  some  parts  of 
which  may  not  be  benefited,  while  the 
front,  to  some  certain  depth,  might  be 
benefited  by  assessment  imposeti.  This 
situation,  if  correct,  would  not  call  for  a 
i*evei-sal  of  the  assessment,  but  only  for 
some  action  directing  the  commissioners  to 
properly  apportion  the  assessments;  and  it 
may  be,  in  this  case,  that  this  would  be  a 
very  proper  proceeding,  but  the  assessment 
of  benefits  to  the  prosecutors  will  not  be  set 
aside  for  this  reason. 

The  fifth  reason  urged  for  nullifying  this 
nssessment  agiunst  the  prosecutors  is  that  the 
whole  assessment,  including  that  made  upon 
the  lands  of  the  prosecutors,  is  made  upon  the 
frontage  of  lands  fronting  on  said  avenue, 
witliout  regard  to  the  size,  value,  or  depth 
of  the  lots  assessed.  This  contention  is  not 
sustained  by  the  evidence.  The  report  of 
the  commissioners  is  "that  we.  and  each  of 
us,  have  personally  and  tlioroughly  examined 
the  said  Union  avenue  and  adjacent  property, 
and  lands  specially  benefite<l  by  said  gi-ad- 
Ing;  that  we  have  justly,  fairly,  and  e(iuita- 
bly  assessed  the  aforesaid  cost  and  expense 
upon  the  lands  and  real  estate  specially  ben- 
efited by  such  improvement  to  the  extent  and 
not  beyond  such  benefit;  and  that  in  mak- 
ing such  assessment  we  have,  in  each  and 
everj'  case,  had  due  i-egard  and  consideration 
to  the  benefits  receivetl  by  such  lot  and  par- 
cel of  land  from  such  improvement,  over  and 
above  all  damagi«5  sustained  by  each  of  said 
lots  or  parcels  of  land,  and  that  in  no  case 
have  we  assessed  any  lot  or  parcel  of  land 
more    tlian    the    amount    of    such    benefit" 


This  Is  the  standard  of  assessment  provided 
for  by  the  borough  laws  goveniing  this  sub- 
ject-matter. Laws  1887,  p.  120,  §  4.  I  find 
no  evidence  assailing  the  area  of  the  assess- 
ment, whatever  may  be  said  of  the  benefits 
accruing  within  it.  The  judgment  of  the 
commissioners  was  that  the  special  benefits 
in  this  case  were  clearly  limited  to  the  fi'ont- 
age.  It  will  be  foimd  that  the  rate  of  the 
various  assessments  is  not  always  the  same. 
In  most  instances  it  will  be  foimd  that  the 
conditions  were  merely  identical,  and  there 
was  but  httle  reason  for  any  difference.  But 
the  judgment  of  the  commissioners  is  that 
the  benefits  laid  by  them  were  special  bene- 
fits, laid  according  to  benefits  bestowed,  and 
not  in  excess  Uiereof.  There  is  no  evidence 
that  in  laying  the  benefits,  so  far  as  there 
were  benefits,  upon  the  frontage,  the  commis- 
sioners did  not  conform  to  the  principle  of 
peculiar  benefits.  The  principle  of  frontage 
assessment  is  not  necessarily  wrong.  If  that 
mode  properly  distributes  the  benefits  among 
the  ownei^s  of  property  benefited,  there  can 
be  no  objection  to  its  use.  Jersey  City  v. 
Howeth,  30  N.  J.  Law,  529;  Pudney  v. 
Village  of  Pa.ssaic,  37  N.  J.  Law,  65.  The 
commissioners  assessed  all  the  lands  which, 
in  their  judgment,  were  benefited.  This  judg- 
ment has  not  been  suoces-sfuUy  assailed  by 
the  evidence  or  facts  of  the  case.  Hunt  v. 
Mayor,  etc.,  of  Rahway,  39  N.  J.  Law,  646. 

The  last  reason  to  be  discussed— 'the  first 
among  the  reasons  of  the  proseeutors-^as 
an  objection  to  this  assessment  is  that  "the 
said  assessment  upon  the  lands  of  the  pi"os- 
ecutors  for  the  said  improvement  is  largely 
in  excess  of  all  benefits  the  said  lands  wUl 
derive  from  said  improvement,"  and  this  in- 
cludes a  consideration  of  the  contention  of 
the  prosecutors  that  a  very  large  portion  of 
this  cost  and  expense  should  have  been 
borne  by  the  borough  at  large.  These  ques- 
tions were  discussed  at  length  by  counsel, 
and  reviewed  very  voluminously  in  their 
briefs.  It  cannot  be  expected  that  all  tlie 
evidence,  and  contentions  arising  out  of  it, 
can  be  taken  up  and  discussed.  The  report 
of  the  commissioners  is  before  us,  and  the 
rule  of  law  is  clear  that  upon  these  points 
their  jtidgment  cannot  be  interfered  with, 
unless  the  force  of  tlie  circumstances  and  ev- 
idence convinc<>s  us  that  it  is  wrong,  and  that 
an  injustice  has  been  done.  The  rule  is 
well  established  that  tlie  assessments  for  ben- 
efits for  sti'eet  improvements,  w^here  the  com- 
missioners have  been  over  the  gi-ound,  and 
examined  the  premises,  and  made  their  re- 
port of  estimates  according  to  the  principles 
prescribed  in  the  charter,  wiU  not  be  set  aside 
upon  conflicting  evidence  of  the  justice  or 
sufficiency  of  said  assessment.  It  must  clear- 
ly appear  that  iiijib^tice  has  been  done  before 
an  assessment  will  be  set  aside  upon  aU 
the  facts.  This  is  the  rule,  notwithstand- 
ing the  statute  which  authorizes  tlie  court 
to  determine  disputed  questions  of  fact  as 
well  as  law.  Jelliff  v.  Newark.  48  N.  J. 
Law,  101,  2  AU.  Rep.  627;    Hegeman  v.  City 


244 


LOCAL   ASSESSMENTS. 


of  Passaic,  51  N.  J.  Law,  113,  16  Atl.  Rep. 
62.  It  will  be  rememl)(>re(l  tliat  the  prose- 
cutors were  iu-.i,anit  applicauts  for  this  im- 
provement, and  that  this  improvement  af-, 
fords  access  to  the  populous  part  of  KuLlier- 
ford  and  other  places  from  tlieir  lands  along 
the  river,  and  renck'rs  the  lands  of  the  pros- 
ecutors available  for  ;ilmost  any  use,— that  of 
residence,  or  otlier  uses;  tliat  this  improve- 
ment is  an  outlet  to  other  places  besides 
Rutherford.  It  opens  a  large  tract  of  land  for 
use;  opens  it  to  the  main  portion  of  Ruth- 
erford, and  their  river  fi'ont  is  made  avail- 
able. The  improvements  run  nearly  through 
the  middle  of  a  large  tract  belonging  to  the 
prosecutors,  and,  according  to  their  own 
plans,  open  it  up  to  development.  The 
(luestion  of  benefits  and  damages  to  their 
lands  has  been  extensively  discussed,  and 
many  witnesses  have  been  called  on  both 
sides.     It  appears  in  evidence  that  the  prose- 


cutors, before  the  improvement  was  com- 
menced, and  at  a  time  when  they  had  jouied 
with  othei-s  in  applying  for  it,  were  willing 
to  be  assessed  quite  heavily  for  it.  Some  of 
the  witnesses  think  that  a  portion  of  the  ex- 
pensovs  should  have  been  a  bui-den  upon  the 
bo^rough.  Some  fix  a  small  proportion.  Oth- 
ers fix  a  large  proportion.  Others  contend 
that  it  should  all  be  borne  by  the  land  ben- 
efited. The  conclusion,  from  an  examina-  \ 
tion  of  the  evidence  in  connection  with  the 
report  of  the  commissioners,  is  that  the  great 
weight  of  the  evidence  is  in  support  of  the 
assessment  as  made.  A  discussion  of  tliis 
o^^.dence  in  detail  appears  to  be  useless. 
The  fact  that  the  evidence  is  conflicting  a» 
to  benefits  does  not  suflice  to  disturb  the  as- 
sessment. Jelliff  V.  Newark,  48  N.  J.  Law, 
101,  2  Atl.  Rep.  627;  Hegeman  v.  City  of 
Passaic,  51  N.  J.  Law,  113,  16  Atl.  Rep.  62. 
The  assessment  must  be  sustained. 


METHODS  OF  APPORTIONMENT. 


245 


CAIN  V,   CITY  OF  OMAHA. 
(GO  N.  W.  368,  42  Neb.  120.) 

Supreme  Court  of  Nebraska.     Oct.  2,  1894. 

Error  to  district  court,  Douj^las  county; 
Hopewell,  Judge. 

Action  by  Urin  R.  Cain  against  the  city 
of  Omaha  to  recover  an  amount  paid  for  a 
tax  alleged  to  be  invalid.  Judgment  was 
rendered  for  defendant,  and  plaintiff  brings 
error.     Reversed. 

B.  G.  Burbauk,  for  plaintiff  in  error.  W. 
J.  Conuell,  for  defendant  in  error. 

IRVINE,  0.     The  plaintiff  was  the  owner 
of  a  strip  of  land  about  900  feet  long,  and 
189'^i  feet  deep,    fronting  on   Locust  street, 
in  tlie  city  of  Omaha,  designated  as  "tax  lot 
57."     For  the  pui-pose  of  opening  Twenty- 
Second  street  from  some  point  south  to  Lo- 
cust street,  the  city  appropriated  a  strip  of 
land  GG  feet   wide   across   the  land  of   the 
plaintiff.     The  result  of  opening  this  sti'eet 
was  to  leave  tax  lot  57  in  two  tracts,— one 
extending  east  from  Twenty-Second  street,  so 
extended,  314  feet;  the  other  extending  west 
from   Twenty-Second    street   507   feet.     The 
plaintiff  was  awarded  .^3,010  for  the  strip  of 
land  so  taken.     In  order  to  pay  this  award, 
a.  local  assessment  was  levied  on  lot  57  and 
other  property.     The  plaintiff  paid  that  por- 
tion of  the  assessment  levied  on  lot  57  under 
protest,  having  objected  to  the  levy  before 
tlie  board  of  equalization,  and  then  brought 
his  action,  under  Comp.   St.   1889,  c.   12a,   § 
W.  to  recover  back  the  taxes  so  paid  as  be- 
ing invalid,  unjust,  and  inequitable.     It  was 
f  alleged  that  the  amount  assessed  upon  tax 
'   lot  57   was   exorbitant,    unjust,   and    illegal, 
and  in   excess  of   the   special   benefits   con- 
ferred, and  that  property  south  of  said  tax 
lot  was  not  assessed  at  all,  although  equally 
benefited.     These    allegations    were    put    in 
f  issue.     There  was  a  trial  to  the  court,  and  a 
I   finding    and    judgment    for    the    defendant, 
.    from   which  the   plaintiff    prosecutes   error, 
'    assigning    practically    only  that  the  finding 
'    and  judgment  are  not  sustained  by  tlie  evi- 
dence.    The   city   rested   its    case  upon    the 
plaintiff's  evidence,  and  there  is  no  conflict 
whatever  in   the   proof.     The  city    has   not 
furnislied  us  with  a  brief,  and  we  are  not  in- 
formed upon  what  grounds  tlie  learned  district 
judge  determined  the  case,— perhaps  from  a 
doubt  of  the  authority  of  the  court  to  review 
the  assessment  in  such  a  proceeding.     The 
uncontradicted    evidence     shows     that    the 
whole  amount   awarded  for   the  appropria- 
tion of  property  was  to  the  plaintiff  for  the 
strip  of  land  referred  to.     Of  the  $3,010  so 
awarded,  $1,000  was  levied  upon  that  por- 
tion of  lot  57  lying  east  of  Twenty-Second 
street,  $1,000  on  that  portion  lying  west  of 
Twenty-Second  street,  and  the  remainder  in 
small  amounts  on  land  lying  on  either  side 
of  Twenty-Second  sti'eet  north  of  Locust,  ex- 


tending back  from  Twenty-Second  street  184 
feet,  and  north  from  Locust  street  six  blocks. 
The  fact  that  two-thirds  of  this  tax  was 
levied  upon  the  remainder  of  the  ti-act  a  part 
of  which  was  appropriated,  and  the  other 
one-third  distributed  in  very  small  sums 
over  a  vast  area,  is  in  itself  sutliclent  to 
excite  grave  suspicions  as  to  the  bona  tides 
of  the  proceedings.  Cain  had  subdivided  lot 
57  into  IS  lots,  upon  which  he  constructed 
houses.  The  evidence  is  uncontradicted  that  j 
no  portion  of  lot  57  rcM^eived  any  benefit  from 
the  opening  of  Twenty-Second  street  except  ; 
the  two  lots  which  were  thereby  given  a 
frontage  upon  that  street,— in  other  words, 
made  corner  lots  by  the  improvement,— and 
that  the  benefit  to  those  lots  did  not  exceed 
$150  each.  It  is  elementary  constitutional  [ 
law  that  the  only  foundation  for  a  local  as- 
sessment lies  in  the  special  benefits  conferred 
by  the  improvement,  and  tliat  a  local  assess- 
ment beyond  the  special  benefits  conferred 
is  a  taking  of  private  property  for  public  ^ 
use  without  compensation.  Hanscom  v. 
City  of  Omaha,  11  Neb.  37,  7  N.  W.  739. 
This  tax  exceeds  the  special  benefits  con-  ] 
ferred  by  at  least  $1,700,  and  to  that  extent 
was  clearly  illegal.  Further,  the  tax  was 
levied  on  the  whole  of  lot  57,  extending  west 
from  Twenty-Second  sti'eet  507  feet,  and  east 
therefrom  314  feet.  Among  the  subdivided 
lots  to  the  north,  the  assessment  did  not  ex- 
tend beyond  a  depth  of  184  feet.  Section 
73  of  the  law  relating  to  cities  of  the  metro- 
politan class  provides  that,  when  "any  public 
improvement  shall  extend  into  or  through 
any  unsubdivided  tract,  pai'cel  or  parcels  of 
land,  said  taxes  shall  be  levied  so  as  not  to 
be  charged  against  tlie  real  estate  adjoining 
such  improvement  for  a  gi*eater  depth  than 
the  average  distance  through  the  subdivided 
real  estate  to  be  taxed  for  said  purix)se." 
Under  this  statute,  no  portion  of  lot  57  lying 
more  than  184  feet  from  Twenty-Second 
street  could  be  taxed. 

The  evidence  clearly  shows  that  the  as- 
sessment was  made  in  an  illegal  manner, 
and  that  it  was  grossly  unjust.  In  fact,  the 
whole  scheme  of  assessment  is  such  as  to  in- 
dicate that  an  attempt  was  made,  under  the 
guise  of  a  local  assessment,  to  take  back  from 
the  plaintiff  two-thirds  of  the  condemnation 
money  awarded  him.  It  is  but  just  that, 
where  a  portion  of  one's  i^roperty  is  taken 
under  cireumstances  allowing  no  deduction 
for  benefits  conferred  upon  the  remainder, 
the  remainder,  if  especially  benefited,  should 
bear  its  fair  proportion  of  the  cost  of  the 
improvement.  But  the  com-ts  will  not  per- 
mit municipaliti(>s  to  evade  the  i)rovision  of 
the  constitution  that  the  property  of  no  per- 
son shall  be  taken  or  damaged  for  public 
use  without  just  compensation  by  paying 
the  compensation,  and  tlien,  under  the  guise 
of  taxation,  taking  it  back  from  the  person 
entitled.     Reversed  and  remanded. 


246 


MUNICIPAL  TAXATION. 


C^) 


CO 


'/  LOVE  T.  CITY  OF  RALEIGH. 

(21  S.  E.  503,  116  N.  C.  296.) 

Supreme   Court   of   North   Carolina.    April    16, 
1895. 

Appeal  from  superior  court,  Wake  county; 
Bynum,  Judge. 

Action  by  E.  H.  Lore  against  the  city  of 
Raleigh  for  injuries  received  through  the 
negligence  of  defendant's  agents  in  mana- 
ging a  pyrotechnic  display.  There  was  a  judg- 
ment for  defendant,  and  plaintiff  appeals. 
Affirmed. 

Battle  &  Mordecai,  for  appellant.  J.  N. 
Holding  and  Strong  &  Strong,  for  appellee. 

AVERY,  J.  The  principal  questions  pre- 
sented by  this  appeal  are:  First,  whether 
the  city  of  Raleigh  was  empowered  by  any 
general  or  special  statute  to  purchase  fire- 
works, and  order  a  committee  to  direct  the 
manner  of  making  the  display;  second, 
whether,  if  no  such  authority  had  been  dele- 
gated to  the  municipality,  it  would  be  an- 
swerable for  the  wrongful  conduct  of  agents 
acting  within  the  scope  of  its  instruction  to 
them,  but  in  the  exercise  of  authority  not 
delegated  to  it  by  the  legislatiu-e.  It  will 
possibly  aid  us  in  the  elucidation  of  these 
questions  to  lay  down  some  general  funda- 
mental rules  defining  and  fixing  the  limits 
of  municipal  powers.  So  long  as  a  city  keeps 
within  the  purview  of  its  delegated  authority, 
it  is  not  responsible  for  any  act  of  its  agents, 
done  in  the  exercise  of  its  judicial,  discretion- 
airy,  or  legislative  powers,  except  where  sub- 
jected to  such  liability  by  some  express  pro- 
vision of  the  constitution  or  of  a  statute. 
Moffitt  V.  Asheville,  103  N.  C.  255,  9  S.  E. 
695;  Hill  v.  City  of  Charlotte,  72  N.  C.  5G; 
1  Shear.  &  R.  Neg.  §  2G2;  Robinson  v.  Green- 
ville, 42  Ohio  St.  625.  But  when  such  a  cor- 
poration is  acting  in  its  ministerial  capacity, 
or  its  corporate,  as  distinguished  from  its 
governmental,  character,  in  the  exercise  of 
powers  conferred  for  its  own  benefit,  and  as- 
sumed voluntarily,  it  is  answerable  for  the 
torts  of  its  authorized  agent,  subject  to  the  lim- 
itation that  such  wrongful  acts  must  not  only 
be  within  the  scope  of  the  agency,  but  also 
within  the  limits  of  the  municipal  authority. 
Moffitt  V.  Asheville,  103  N.  C.  254,  9  S.  E. 
695;  2  Dill.  Mun.  Corp.  (4th  Ed.)  §  9GS  (7GG). 
In  the  section  cited  above.  Judge  Dillon  says: 
"If  the  act  complained  of  necessarily  lies 
wholly  outside  of  the  general  or  special  pow- 
ers of  the  corporation,  as  conferred  by  its 
charter  or  by  statute,  the  corporation  can 
In  no  event  be  liable  to  an  action  for  dam- 
ages, whether  it  directly  commanded  the 
performance  of  the  act,  or  whether  it  be  done 
by  officers  without  its  express  command;  for 
a  corporation  cannot,  of  course,  be  impliedly 
liable  to  a  greater  extent  than  it  could  make 
itself  by  express  corporate  vote  or  action." 
RefeiTlng  especially  to  the  wrongful  acts  of 
agents  of  municipalities,  the  .same  author 
says  in  a  subsequent  section  (9G9a):    "As  to 


torts  or  wrongful  acts  not  resting  upon  con-  j 
tract,  but  which  are  ultra  vires  in  the  sense  1 
above  explained  (viz.  wholly  and  necessarily 
beyond  the   possible  scope   of  the  chartered 
powers  of  the  municipality),  we  do  not  see 
on  what  principle  they  can  create  an  implied 
liability  on  the  part  of  the  municipality.     If 
they  may,  of  what  use  are  the  limitations  of 
the  chartered  corporate  powers?"     2  Thomp. 
Neg.  737;    Smith  v.  City  of  Rochester,  76  N. 
Y.  506;    Mayor,  etc.  v.  Cunliff,  2  N.  Y.  165. 
It   is   not  denied   that   if   the   agent,    in   the 
course  of  his  employment,  is  guilty  of  neg- 
ligence, or  commits  even  a  willful  trespass, 
with  the  belief  and  intention  that  the  act  will 
inure  to   the  benefit   of  the  principal,   then- 
not  only  does  the  doctrine  of  respondeat  su- 
perior apply,  but  both  principal  and  servant 
may  be  made  to  answer  for  the  resulting  dam-^ 
age.     See  authorities  cited  in  Tate  v.  City  of 
Greensboro,  114  N.  C,  on  pages  416,  417,  19 
S.  E.  767;    especially  2  Dill.  Mun.   Corp.  §§ 
979,  980,  et  seq.;    Hewitt  v.  Swift,  3  Allen, 
420;     Johnson     v.    Barber,    5     Oilman,    425; 
Wright  V.  Wilcox,  19  Wend.  343.     "Without  i 
express  power,"  says  Judge  Dillon,  1   Mun.  ' 
Goi-p.  §§  149  (100)  "a  public  corporation  can- 
not make  a  contract  to  provide  for  celebrat-  . 
ing  the  Fom-th  of  July,  or  to  provide  an  en- 
tertainment for  its  citizens  or  guests.     Such  ' 
contracts  are  void,  and,  although  the  plaintiff  / 
complies   therewith   on    his   part,    he    cannot  ■ 
recover  of  the  corporation."  Hodges  v.  Buf- 
falo, 2  Denio,  110;    2  Dill.  Mun.  Corp.  §  916 
et  seq.;    Austin  v.  Coggeshall,  12  R.  I.  329. 
It  is  needless  to  cite  further  authority  in  sup- 
port of  the  proposition  that  if  a  city  is  not  i 
empowered  to  contract  a  debt  for  the  purpose 
of  making  a  display  on  a  national   holiday,  | 
or  on  such  an  occasion  as  the  centennial  an- 
niversary of  its  existence  as  a  municipality,  ( 
it  would  follow  of  necessity  that  it  could  not, 
by  empowering  agents  to  supervise  a  display 
that  it  could  not  lawfully  pay  for,  subject  its 
taxpayers  to  liability  for  the  willful  wrong 
or  negligence  of  such  agents,  when  they  are 
acting  entirely   outside  of  the  scope  of  any 
duty  that  the  city  is  authorized  to  impose. 
2  Dill.  Mun.  Corp.  §  969a.     A  municipality'  i» 
not  answerable  for  torts  of  a  servant,  except 
where   the   wrong   complained   of   is   an    act 
done   in    the   course   of    his    lawful    employ- 
ment, or  an  omission  of  a  duty  devolving  up- / 
on  him  as  an  incident  to  such  service. 

Before  entering  upon  the  consideration  of 
the  sufficiency  of  the  statutes  relied  upon  to 
authorize  the  action  of  the  mayor  and  alder- 
men of  the  city  in  making  an  appropriation 
and  appointing  a  committee  to  purchase  the 
necessary  articles  and  to  supervise  the  pyro- 
technic display  on  the  occasion  referred  to, 
it  is  perhaps  best  to  recur  to  the  rule  that  a 
municipality  is  clothed  with  those  powers 
only  which  are  granted  in  express  terms,  or 
necessarily  or  fairly  implied  from  or  inci- 
dent to  those  expressly  granted,  and  which 
it  is  essential  to  exorcise  in  order  to  carry 
out  objects  and  pui-poses  of  creating  the  cor- 


MUST  BE  FOR  PUBLIC  PURPOSE. 


247 


poration.  1  Dill.  Mun.  Corp.  §  89  (55);  State 
V.  Webber,  107  N.  C.  962,  12  S.  E.  598.  In 
all  of  the  cases  relied  upon  by  plaintiff's  coun- 
sel it  seems  that  the  municipalities  had  the 
authority  to  pass  an  ordinance  or  make  an 
order  under  color  of  authority.  It  has  not 
been  contended  or  alleged  that  the  action  is 
founded  upon  the  creation  of  a  nuisance  by 
the  city,  nor  can  it  be  successfully  main- 
tained that  the  use  of  fireworks  is  analogous 
to  the  case  of  blocking  up  a  public  highway 
which  it  is  the  duty  of  the  municipality  to 
maintain  in  good  condition.  The  charter  of 
the  city  (chapter  24:5,  Laws  1S91)  grants  to 
the  mayor  and  aldermen,  when  assembled, 
the  following  powers: 

"Sec.  31.  That  the  aldermen  when  con- 
vened shall  have  power  to  make  and  provide 
for  the  execution  thereof,  such  ordinances, 
by-laws,  rules  and  regulations  for  the  better 
government  of  the  city  as  they  may  deem 
necessary:  provided,  the  same  be  allowed  by 
the  provisions  of  this  act  and  be  consistent 
with  the  laws  of  the  land. 

"Sec.  32.  The  board  of  aldermen  shall  con- 
tract no  debt  of  any  kind  unless  the  money 
is  in  the  treasury  for  its  payment,  except  for 
the  necessaiy  expenses  of  the  city  govern- 
ment. 

"Sec.  33.  That  among  the  powers  hereby 
conferred  on  the  board  of  aldermen,  they 
may  borrow  money  only  by  the  consent  of  a 
majority  of  the  qualified  registered  voters, 
which  consent  shall  be  obtained  by  a  vote 
of  the  citizens  of  the  corporation  after  30 
days  public  notice,  at  which  time  those  who 
consent  to  the  same  shall  vote  'Approved' 
and  those  who  do  not  consent  shall  vote 
'Not  Approved;'  they  shall  provide  water 
and  lights,  provide  for  repairing  and  cleans- 
ing the  streets,  regulate  the  market,  take  all 
proper  means  to  prevent  and  extinguish  fires, 
make  regulations  to  cause  the  due  observ- 
ance of  Sunday,  appoint  and  regulate  city 
policemen,  suppress  and  remove  nuisances, 
regulate,  control  and  tax  the  business  of  the 
junk-shops  and  pawn-shop  keepers  or  bro- 
kers, preserve  the  health  of  the  city  from 
contagious  and  infectious  diseases;  may  pro- 
vide a  board  of  health  for  the  city  of  Raleigh 
and  prescribe  their  duties  and  powers,  pro- 
vide ways  and  means  for  the  collection  and 
preservation  of  vital  statistics;  appoint  con- 
stables to  execute  such  precepts  as  the  may- 
or or  other  persons  may  lawfully  issue  to 
them,  to  preserve  the  peace  and  order,  and 
execute  the  ordinances  of  the  city;  regulate 
the  hours  for  sale  of  spirituous  liquors  by 
all  persons  required  to  be  licensed  by  the 
board,  and  during  periods  of  great  public 
excitement  may  prohibit  sales  of  spirituous 
liquor  by  all  such  persons  for  such  time  as 
the  board  may  deem  necessary;  may  pass 
ordinances  imposing  penalties  for  violations 
thereof  not  to  exceed  a  fine  of  fifty  dollars 
or  imprisonment  for  thirty  days.  *  *  * 
Tliey  shall  have  the  right  to  regulate  the 
charge  for  the  carriage  of  persons,  baggage 


and  freight  by  omnibus  or  other  vehicle,  and 
to  issue  license  for  omnibuses,  hacks,  drays 
or  other  vehicles  used  for  the  transportation 
of  persons  or  things  for  hire.  They  may  also 
provide  for  public  schools  and  public  school 
facilities  by  purcliasing  land  and  erecting 
buildings  thereon  and  o(iuipping  the  same 
within  the  corporate  limits  of  the  city  or 
within  one  half  mile  thereof.  They  may  also 
construct  or  contract  for  the  construction  of 
a  system  of  sewerage  for  the  city  and  pro- 
tect and  regulate  the  same  by  adequate 
ordinances;  and  if  it  shall  be  necessary,  in 
obtaining  proper  outlets  for  the  said  system, 
to  extend  the  same  beyond  the  corporate 
limits  of  the  city,  then  in  such  case  the 
board  of  aldermen  shall  have  the  power  to 
so  extend  it,  and  both  within  and  without 
the  coi-porate  limits  to  condemn  land  for  the 
purposes  of  right-of-way  or  other  require- 
ments of  the  system,  the  proceedings  for 
such  condemnation  to  be  the  same  as  those 
prescribed  in  chapter  49,  section  6,  of  the 
Private  Laws  of  1SG2  and  '63,  or  in  the  man- 
ner prescribed  in  chapter  49,  volume  1  of  the 
Code." 

In  these  provisions  of  the  charter  and  in 
sections  3800  to  3805,  both  inclusive,  of  the 
Code,  will  be  found  enumei-ated  all  of  the 
powers  gi-anted  to  the  city  by  general  or  spe- 
cial laws.  We  do  not  think  that  the  general 
power  to  pass  ordinances  can  be  held  to 
carry  with  it  by  implication  any  such  grant 
of  authority  as  that  to  expend  the  public 
money  for,  and  conduct  under  the  auspices 
of  the  city  officers,  such  a  display  as  that 
described  by  the  witnesses.  We  are  aware 
that  such  authority  has  been  assumed  by 
cities  and  towns  in  many  of  the  states,  but 
where  the  exercise  of  it  has  been  drawn  in 
question  in  the  courts  it  has  been  sustained 
only  when  some  statute  expressly  confei'red 
the  power  to  make  the  appropriation  for 
that  particular  purpose.  As  we  underetand 
the  authorities  cited,  the  supreme  court  of 
Massachusetts  has  given  its  sanction  to  the 
validity  of  expenditures  for  such  purposes 
only  where  some  express  provision  of  law 
was  shown  to  wan*ant  it.  In  one  of  the 
cases  cited  from  that  state  (Tindley  v.  City  of 
Salem,  137  Mass.  171)  the  court  held  that, 
even  where  a  person  was  injured  by  the 
negligent  use  of  fireworks  by  the  servants  of 
a  city  that  had  ordered  the  display  for  the 
gratuitous  amusement  of  the  people,  under 
the  authority  of  a  statute,  the  city  was  not 
liable  to  answer  in  damages.  In  an  earlier 
case  it  had  been  held  that  a  city  council 
must  act  strictly  in  pursuance  of  statutory 
power  to  make  such  displays  to  subject  it  to 
liability  for  injuries  due  to  the  negligence 
of  its  servants  in  the  management  of  it. 
ISIoiTison  V.  City  of  Lawrence,  08  Mass.  219. 
Where  no  statutory  authority  is  shown  for 
a  wrongful  act  done  under  the  direction  of 
a  municipality,  the  supreme  court  of  Massa- 
chusetts lays  down  the  general  rule  as  to  its 
liability  substantially  as  we  have  stated  it. 


248 


MUNICH^ AL  TAXATIOiT. 


/Cavanaugh  v.    Boston,' 139   Mass.   426,   1   N. 

I  E.  834;  Claflin  v.  Hopkinton,  4  Gray,  502. 
If  there  is  no  authority  confen-ed  upon  the 
mayor  and  aldermen  by  the  statute  men- 
tioned, and  we  can  discover  none  after  dili- 
gent search  and  examination,  it  is  imma- 
terial whether  the  persons  in  immediate  con- 
trol of  the  fireworks  were  servants  acting 
under  the  dii'ection  of  the  committee  ap- 
pointed by  a  resolution  passed  by  the  mayor 
and  commissioners,  and  stood  in  the  relation 
of  agents  to  the  city,  or  whether  they  were 
independent  contractors.  If  the  authorities 
of  the  city  acted  ultra  vires  in  ordering 
the  display,  the  question  whether  they  em- 
ployed expert  pyrotechnists,  and  acted  upon 
their  advice  after  securing  their  services, 
Is  equally  as  irrelevant  If,  therefore,  it 
were  conceded  that  the  chairman  of  the  com- 
mittee appointed  by  the  city  for  the  purpose 
supervised  and  directed  the  negligent  man- 
agement of  the  fireworks,  and  at  such  a 
place  as,  it  was  evidence  of  a  want  of  care 
to  select,  we  think  it  was  the  duty  of  the 


court  nevertheless  to  tell  the  jury  that  the 
mayor  and  aldennen  were  not  authorized  by 
law  to  make  an  appropriation  for  and  direct 
the  management  of  a  display  of  fireworks, 
and  that  the  city  was  not  liable  to  respond 
in  damages  for  the  wrongful  or  negligent 
conduct  of  a  servant  acting  under  instruc- 
tions given  by  the  city,  but  without  authori- 
ty of  law.  For  the  reasons  given,  we  think 
that  the  court  should  have  instructed  the 
jury  that  in  no  aspect  of  the  evidence  was 
the  defendant  corporation  liable  for  the  acts 
of  its  servants  in  the  management  of  the 
fireworks.  Whether  the  i-ulin£rs  of  the  court 
upon  the  admissibility  of  testimony  were  ab- 
stractly erroneous  or  not  is  not  material, 
since,  whether  excluded  or  admitted,  it  was 
manifest  that  the  plaintifT  was  not,  in  any 
view  of  the  evidence,  entitled  to  recover, 
There  was  no  error  of  which  the  plaintiff 
can  justly  complain,  and  the  judgment  must 
be  affirmed. 

MONTGOMERY,  J.,  did  not  sit 


iff  I 


MUST   BE  FOR   TUBLIC   PURPOSE. 


249 


CITY  OF  ST.  LOUIS  v.  WESTERN  UNION 
TEL.  CO. 

(13  Sup.  Ct.  990.  149  U.  S.  465.) 

Supremo  Court  of  United  States.    May  15,  1893. 

No.  ^. 

On  ivlu'uring.    Denied. 

For  prior  report,  see  13  Sup.  Ct.  Rep.  4S5. 

Mr.  Justice  BREWER  delivered  tlie  opiu- 
ion  of  the  court. 

In  tlie  opinion  heretofore  annoimced  it 
was  said:  "We  do  not  undei-staud  it  to 
be  questioned  by  counsel  for  the  defend- 
ant that,  under  tlie  constitution  and  laws 
of  Missouri,  the  city  of  St.  Louis  has 
full  control  of  its  streets  in  this  respect, 
and  represents  the  public  in  relation  there- 
to." A  petition  for  a  reliearing  has  been 
filed,  in  which  it  is  claimed  that  the 
court  misundei-stood  tlie  position  of  counsel, 
and,  further,  that  in  fact  the  city  of  St.  Louis 
has  no  such  control.  Leave  having  been 
given  therefor,  briefs  on  the  question  wheth- 
er such  control  exists  have  been  filed  by 
both  sides,  that  of  the  telegraph  company 
being  quite  full  and  elaborate. 

We  see  no  reason  to  change  the  views  ex- 
pressed as  to  the  power  of  the  city  of  St. 
Louis  in  this  mattei*.  Control  over  the 
streets  resides  somewhere.  As  the  legisla- 
tive power  of  a  state  is  vested  in  the  legisla- 
ture, generally  that  body  has  the  supreme 
control,  and  it  delegates  to  municipal  corpo- 
rations such  measure  thereof  as  it  deems 
best.  The  city  of  St.  Louis  occupies  a  unique 
position. /it  does  not,  lilve  most  cities,  de- 
rive its  powers  by  grant  from  the  legisla- 
ture, but  it  framed  its  own  charter  under 
express  autliority  fj'om  the  people  of  the 
state,  given  in  tli(i  constitution.  Sections  20, 
21,  art.  9,  Const.  Mo.  1875,  authorized  the 
election  of  13  freeholders  to  prepare  a  char- 
ter to  be  submitted  to  the  (pialified  voters 
of  the  city,  whicli,  aaIiou  ratilied  by  them, 
was  to  "become  the  oi'ganic  law  of  the  city." 
Section  22  provided  for  amendments,  to  be 
made  at  intervals  of  not  less  than  two  yeai's 
and  upon  the  approval  of  three-fifths  of  tlie 
voters.  Sections  23  and  25  required  the 
charter  and  amendments  to  always  be  in 
harmony  with  and  subject  to  the  constitu- 
tion and  laws  of  Missouri,  and  gave  to  the 
general  assembly  the  same  power  over  this 
city,  notwithstanding  the  provisions  of  this 
article,  as  was  had  over  other  cities.  In 
pursuance  of  these  provisions  of  the  consti- 
tution a  charter  was  prepared  and  adopted, 
and  is,  therefore,  the  "organic  law"  of  the 
city  of  St.  Louis,  and  the  powers  granted 
by  it,  so  far  as  they  are  in  harmony  with 
the  constitution  and  laws  of  the  state,  and 
have  not  been  set  aside  by  any  act  of  the 
general  assembly,  are  the  powers  vested  in 
the  city.  And  this  charter  is  an  organic  act, 
80  defined  in  the  constitution,  and  is  to  be 
construed  as  oi'ganic  acts  are  construed. 
The  city  is  in  a  very  just  sense  an  "im- 


periuni  in  imperio."  Its  powers  are  self- 
appointed,  and  the  reserved  control  existing 
in  the  general  assembly  does  not  tiike  away 
this  peculiar  feature  of  its  charter^ 

An  examination  of  this  charter  (2  Rev. 
St.  Mo.  1ST9,  p.  1572  and  following)  will 
disclose  that  very  large  and  general  po^yers 
are  given  to  the  city,  but  it  would  unneces- 
sarily prolong  this  opinion  to  quote  the  many 
sections  defining  these  powers.  It  must  suf- 
fice to  notice  those  directly  in  point.  Para- 
graph 2,  §  26,  art.  3,  gives  the  mayor  and 
assembly  power,  by  ordinance,  "to  estab- 
lish, open,  vacate,  alter,  widen,  extend, 
pave,  or  otherwise  improve  and  sprinkle,  all 
streets,  avenues,  sidewalks,  alleys,  wharves, 
and  public  grounds  and  sciuares,  and  provide 
for  the  payment  of  the  costs  and  expenses 
thereof  in  the  manner  in  this  charter  pre- 
scribed; and  also  to  provide  for  the  grad- 
ing, lighting,  cleaning,  and  repairuig  the 
same,  and  to  condemn  private  property  for 
public  uses,  as  provided  for  in  this  charter; 
to  construct  and  keep  in  rep.iii-  all  bildges, 
streets,  sewers,  and  drains,  and  to  regulate 
the  use  thereof,"'  etc.  The  fifth  paragraph 
of  tlie  same  article  grants  power  "to  hccnse, 
tax,  and  regulate  *  *  *  telegraph  com- 
panies or  corporations,  street-railroad  cars," 
etc.  Article  6  treats  of  public  improvements, 
including  the  openmg  of  streets.  Section  2 
provides  for  condemning  private  property, 
and  "for  establishing,  opening,  widening,  or 
altering  any  street,  avenue,  alley,  wharf, 
market  place,  or  public  square,  or  route  for 
a  sewer  or  water  pipe."  By  section  4  com- 
missioners are  to  be  appointed  to  assess  the 
damages.  By  section  5  it  is  made  the  duty 
of  these  commissioners  to  ascertain  the  ac- 
tual value  of  the  land  and  premises  pro- 
posed to  be  taken,  and  the  actual  damages 
done  to  the  property  thereby;  "and  for  the 
payment  of  such  values  and  damages  to  as- 
sess against  the  city  the  amount  of  benefit  to 
the  public  generally,  and  the  balance  against 
the  owner  or  owners  of  all  property  ■which 
shall  be  specially  benefited  by  tlie  proposed  im- 
provement in  the  opinion  of  the  commission- 
ers, to  the  amount  that  each  lot  of  such 
owner  shall  be  benefited  bj'  the  improve- 
ment." Except,  therefore,  for  the  special 
benefit  done  to  the  adjacent  property,  the 
city  pays  out  of  its  treasury  for  the  open- 
ing of  streets,  and  this  power  of  the  city  to 
open  and  establisli  streets,  and  the  duty  of 
paying  the  damages  therefor  out  of  the 
city  treasury,  were  not  created  tor  the  first 
time  by  this  charter,  but  have  been  the  rule 
as  far  back  as  1839. 

Furtlier  than  that,  with  the  charter  was, 
as  autliori/.ed  by  the  constitution,  a  scheme 
for  an  enlargement  of  the  boundaries  of  the 
city  of  St.  Louis,  and  an  adjustment  of  the 
relations  consequent  thereon  between  the 
city  and  the  county.  The  boimdaries  were 
enlarged,  and  by  section  10  of  the  scheme  It 
was  provided: 

"Sec.    10.   All  the  public  buildings,   institu- 


250 


MUNICIPAL  TAXATION. 


tions,  public  parks,  and  property  of  every 
character  and  description  heretofore  owned 
and  controlled  by  the  county  of  St.  Louis 
within  the  limits  as  extended,  including  the 
courthouse,  the  county  jail,  the  insane  asy- 
lum, and  the  poorhouse,  are  hereby  trans- 
ferred and  made  over  to  the  city  of  St. 
Louis,  and  aU  the  right,  title,  and  interest 
of  the  county  of  St.  Louis  in  said  property, 
and  in  aU  public  roads  and  highways  within 
the  enlarged  limits,  is  hereby  vested  in  the 
city  of  St.  Louis,  and  divested  out  of  the 
county;  and  in  consideration  of  the  city  be- 
coming the  proprietor  of  all  the  county 
buildings  and  property  within  its  enlarged 
limits,  the  city  hereby  assumes  the  whole 
of  the  existing  county  debt  and  the  entire 
park  tax."    2  Rev.  St.  Mo.  1879,  p.  1565. 

Obviously,  the  intent  and  scope  of  this 
charter  are  to  vest  in  the  city  a  very  en- 
larged control  over  public  property  and  prop- 
ertj^  devoted  to  pubUc  uses  within  the  terri- 
torial limits. 

It  is  given  power  to  open  and  establish 
streets,  to  improve  them  as  it  sees  fit,  and  to 
regulate  their  use,  paying  for  aU  this  out  of 
its  own  funds.  The  w^rd  "regulate"  is  one 
of  broad  import.  It  is  the  word  used  in  the 
federal  constitution  to  define  the  power  of 
congress  over  foreign  and  interstate  com- 
merce, and  he  who  reads  the  many  opinions 
of  this  court  wiU  perceive  how  broad  and  com- 
prehensive it  has  been  held  to  be.  If  the 
city  gives  a  right  to  the  use  of  the  streets 
or  public  grounds,  as  it  did  by  ordinance 
No.  ll.dOl,  it  simply  regulates  the  use  when 
it  prescribes  the  terms  and  conditions  upon 
which  they  shall  be  used.  If  it  should  see 
fit  to  construct  an  expensive  boulevard  in  the 
city,  and  then  limit  the  use  to  vehicles  of 
a  certain  kind  or  exact  a  toU  from  all  who 
use  it,  would  that  be  other  than  a  regulation 
of  the  useV  And  so  it  is  only  a  matter  of 
regulation  of  use  when  the  city  grants  to 
the  telegraph  company  the  right  to  use  ex- 
clusively a  portion  of  the  street,  on  condi- 
tion of  contributing  something  towards  the 
expense  it  has  been  to  in  opening  and  im- 
proving the  street.  Unless,  therefore,  the 
telegraph  company  has  some  superior  right 
I  which  excludes  it  from  subjection  to  this 
i  control  on  the  part  of  the  city  over  the 
streets,  it  would  seem  that  the  power  to  re- 
quire payment  of  some  reasonable  sum  for 
1,  the  exclusive  use  of  a  portion  of  the  streets 
V  was  within  the  grant  of  power  to  regulate 
\the  use.  That  the  company  gets  no  such 
I  right  from  the  general  government  is  shown 
I  by  the  opinion  heretofore  delivered,  nor 
\  has  it  any  such  from  the  state.  The  law  in 
force  in  Missouri  from  1800  gives  certain 
rights  in  streets  to  "companies  organized 
under  the  provisions  of  this  article."  Of 
i-i.i:,se,  ilic  (lefendant,  a  corporation  organ- 
iz(tl  under  tlio  laws  of  the  state  of  New 
York,  can  claim  no  benefit  of  this.  It  is 
,  true  that,  prior  to  that  time,  and  by  the 
act  of  November  17,  1855,  (2  Rev.  St.  Mo. 
1855,  p.  1520,)  the  right  was  given  to  every 


telegraph  corporation  to  construct  its  lines 
along  the  highways  and  pubUc  roads;  but 
that  was  superseded  by  the  legislation  of 
1866;  and  when  in  force  it  was  only  a 
permission,  a  license,  which  might  be  re- 
voked at  any  time;  and,  further,  whatever 
rights,  if  any,  this  defendant  may  have  ac- 
quired to  continue  the  use  of  the  streets 
already  occupied  at  the  time  of  the  Revision 
of  1800,  it  cannot  with  any  show  of  reason  i 
be  contended  that  it  received  an  irrevocable 
power  to  traverse  the  state,  and  occupy  any 
other  streets  and  highways. 

Neither  have  we  found  in  the  various  de-  \ 
cisions  of  the  courts  of  ^Missouri,  to  which  I 
our  attention  has  been  called,  any  denial  of  j 
the  power  of  the  city  in  this  respect.  It  is 
true,  in  Glasgow  v.  St.  Louis,  87  Mo.  678; 
Cummings  v.  City  of  St.  Louis,  90  Mo.  259^ 
2  S.  W.  Rep.  130;  Glaessner  v.  Association, 
100  Mo.  508,  13  S.  W.  Rep.  707;  and  Belcher 
Sugar  Refining  Co.  v.  St.  Lo^us  Grain  Ele- 
vator Co.,  101  Mo.  192,  13  S.  W.  Rep.  822, 
—the  power  of  the  city  to  devote  the  streets 
or  public  grounds  to  purely  private  uses 
was  denied;  but  in  the  cases  of  Julia  Build- 
ing Ass'n  V.  BeU  Tel.  Co.,  88  Mo.  258,  and 
City  of  St.  Louis  v.  Bell  Tel.  Co.,  96  Mo. 
623,  10  S.  W.  Rep.  197,— it  was  expressly 
held  that  the  use  of  the  streets  for  telephone 
poles  was  not  a  private  use.  (and  of  course 
telegraph  poles  stand  on  the  same  footing,) 
and  that  a  private  corporation  carrying  on 
the  public  service  of  trfinsportation  of  mes- 
sages might  be  permitted  to  use  the  streets 
for  its  poles.  Counsel  rely  strongly  upon 
the  latter  of  these  cases,  in  which  the  power 
of  the  city  to  regulate  the  charges  for  tele- 
phone sei-^-ice  was  denied.  But  obviously 
that  decision  does  not  cover  this  case.  The 
relations  of  a  telephone  or  telegraph  com- 
pany to  its  patrons,  after  the  use  of  the 
streets  has  been  granted,  do  not  affect 
the  use,  and  power  to  regulate  the  use  does 
not  carry  with  it  by  implication  power  ta 
regulate  the  dealings  between  the  coiiDora- 
tion  having  such  use  and  its  individual  pa- 
trons; but  what  the  company  shall  pay  to- 
the  city  for  the  use  is  directly  involved  in 
a  regulation  of  the  use.  The  determination 
of  the  amount  to  be  paid  for  the  use  is 
as  much  a  matter  of  regulation  as  deter- 
mining tlie  place  which  may  be  used  or  the 
size  or  height  of  the  poles.  The  very  arsru- 
ment  made  by  the  court  to  show  that  fixing 
telephone  charges  is  not  a  regulation  of  the 
use  is  persuasive  that  fixing  a  price  for  the 
use  is  such  a  regulation.  Counsel  also  refer 
to  the  case  of  Atlantic  &  P.  R.  Co.  v.  St. 
Louis,  06  Mo.  228,  but  there  is  nothing  in 
that  case  which  throws  any  light  upon  this. 
I'l  tiint  it  ai)peared  that  there  was  an  act 
of  the  legislature  giving  to  the  railroad  com. 
pany  a  specific  right  in  respect  to  the  con- 
struction of  a  track  within  the  city  Unfits, 
and  it  was  held  that  the  company  was  en- 
titled to  the  benefit  of  that  act,  and  to 
claim  the  right  given  by  the  general  assem- 
bly,  although   it   had   after   the   passage  of 


MUST  BE  FOR  PUBLIC  PURPOSE. 


251 


ihe  act  proceeded  in  the  construction  of  tlio 
track  uiiiler  an  ordinance  of  the  city  pur- 
porting to  give  it  the  privilege.  But,  as  we 
have  seen,  the  act  of  November  17,  lS.j.">,. 
vested  in  defendant  no  general  and  irrev- 
ocable power  to  occupy  the  streets  in  any 
city  in  the  state  through  aU  time.  "We  find 
nothing,  therefore,  in  the  cases  cited  from 
the  Missouri  cotu-ts  which  militates  with 
tlie  conclusions  we  have  drawn  as  to  the 
power  of  the  city  in  this  respect. 

One  other  matter  deserves  notice:  It  wiU 
be  seen  by  refemng  to  ovir  former  opinion 
that  one  of  the  contentions  of  the  coimsel 
for  the  telegraph  company  was  that  by  or- 
dinance No.  11,604  the  city  had  contracted 
with  the  company  to  penult  the  erection 
of  these  poles  in  consideration  of  the  right 
of  the  city  to  occupy  and  use  the  top  cross- 
arm  free  of  charge.  We  quote  this  state- 
ment of  counsel's  claim  from  their  brief: 
"Ordinance  11,604  granted  defendant  author- 
ity to  set  its  poles  in  the  streets  of  the  city 
without  any  limitation  as  to  time,  for  valu- 


able considerations  stipulated;  and  having 
been  accepted  and  acted  on  by  defendant, 
and  all  its  conditions  complied  with,  and  the 
city  having  acquired  valuable  rights  and 
privileges  thereunder,  said  ordinance  and  its 
acceptance  constitute  a  contract,  which  the 
city  cannot  alter  in  its  essential  terms  with- 
out the  consent  of  defendant;  nor  can  it 
impose  new  and  burdensome  considerations." 
And  in  respect  to  this,  further  on,  they  say: 
"No  question  is  or  can  be  raised  as  to  the 
validity  of  the  contract  made  by  ordinance 
No.  11,604,  and  its  acceptance."  But  if  the 
city  had  power  to  contract  with  defendant 
for  the  use  of  the  streets,  it  was  because  it 
had  control  over  that  use.  If  it  can  sell  the 
use  for  a  consideration,  it  can  require  pay- 
ment of  a  consideration  for  the  use;  and 
when  counsel  say  that  no  question  can  be 
made  as  to  the  validity  of  such  a  contract, 
do  they  not  concede  that  the  city  has  such 
control  over  the  use  of  the  streets  as  en- 
ables it  to  demand  pay  therefor? 
The  petition  for  a  rehearing  is  denied. 


252 


MUNICIPAL  TAXATION. 


€ITY  OF  CHESTER  v.  WESTERN  UNION 
TEL.  CO. 

(25  Atl.  1134,  154  Pa.  St.  464.) 

Supreme  Court  of  Pennsylvania.     Feb.  20,  1893. 

Appeal  from  court  of  common  pleas,  Dela- 
ware county. 

Assumpsit  by  the  city  of  Chester  against 
the  Western  Union  Telegraph  Company  to 
recover  $1,470,  as  license  tax  for  245  poles 
erected  and  maintained  by  defendant  in 
such  city  from  1885  to  1891.  Plaintiff's  rule 
for  judgment  for  want  of  a  sufficient  affida- 
vit of  defense  was  made  absolute,  and  de- 
fendant appeals.     Affirmed. 

The  city  of  Chester  in  1884  and  1889  adopt- 
ed two  ordinances,  by  which  it  was  provided 
that  every  telegraph  company  owning  tele- 
graph poles  within  the  city  limits  should  pay 
to  the  city  treasurer  a  license  fee  of  one  dol- 
lar upon  each  new  pole  to  be  erected,  and 
one  dollar  yearly  for  each  pole  maintained 
by  the  company,  and  providing  penalties  for 
failure  to  comply  with  the  ordinances.  The 
affidavit  of  defense  denies  that  there  is  any 
power  in  the  city  of  Chester  to  levy  such 
A  license  tax,  by  ordinance  or  otherwise,  or 
any  authority  for  so  doing,  since  the  West- 
ern Union  Telegraph  Company  is  an  instru- 
ment of  commerce,  and  that  as  measures  in 
aid  of,  or  part  of,  police  regulations,  the 
sums  mentioned  in  the  ordinances  are  large- 
ly in  excess  of  the  actual  sums  requhed  for  the 
purpose,  and  hence  void. 

.Tohn  R.  Read,  Silas  W.  Pettit,  and  H.  B. 
Gill,  for  appellant.  Orlando  Harvey,  for  ap- 
pellee. 

PER  CURIAM.  It  was  conceded  by  the 
appellant  company  that  the  city  of  Chester 
has  the  power  to  impose  a  reasonable  charge 
for  a  license  to  erect  telegraph  poles  within 
the  limits  of  the  municipality.  The  ordi- 
nance of  the  city  imposed  a  license  tax  of 
^ne  dollar  per  year  for  each  pole.     We  have 


held  in  a  number  of  recent  cases  i  that  this 
amount  is  not  so  unreasonable  as  to  justify 
us  in  interfering  with  the  discretion  of  such 
municipalities. 

In  this  case,  however,  the  court  below  en- 
tered judgment  for  want  of  a  sufficient  aflS- 
davit  of  defense.  The  affidavit  in  question 
contains  this  averment:  "The  said  Western 
Union  Telegraph  Company  avers  that  the 
sum  sought  to  be  recovered  in  this  cause 
pretends  to  be  imposed,  and  is  sought  to  be 
justified,  as  a  license  tax,  merely,  in  aid  and 
as  a  part  of  a  police  regulation  of  the  city 
of  Chester,  and  as  such  is  imjust  and  unrea- 
sonable, in  that  the  amount  thereof  is  wholly 
disproportioned  to  the  usual,  ordinary,  or 
necessary  expense  of  municipal  officers  of 
issuing  licenses  and  other  expenses  thereby 
imposed  upon  the  municipality  of  the  city 
of  Chester,  but  is,  on  the  contrary,  largely 
in  excess  thereof,  to  wit,  at  least  five  times 
the  expense  thereof,  wherefore  the  sum  is 
unreasonable,  not  authorized  by  law,  and 
therefore  void."  For  the  purposes  of  this 
case  we  must  treat  this  averment  as  true, 
as  far  as  it  goes.  The  difficulty  is,  it  does 
not  go  far  enough.  It  refers  only  to  the 
usual,  ordinary,  or  necessary  expense  of 
municipal  officers  of  issuing  licenses,  and 
other  expenses  thereby  imposed  upon  the 
municipality.  It  makes  no  reference  to  the 
liability  imposed  upon  the  city  by  the  erec- 
tion of  telegraph  poles.  It  is  the  duty  of 
the  city  to  see  that  the  poles  are  safe,  and 
properly  maintained;  and,  should  a  citizen 
be  injured  in  person  or  property  by  reason  of 
a  neglect  of  such  duty,  an  action  might  lie 
against  the  city  for  the  consequences  of  such 
neglect.  It  is  a  mistake,  therefore,  to  meas- 
ure the  reasonableness  of  the  charge  by  the 
amount  actually  expended  by  the  city  for  a 
particular  year,  to  the  particular  purposes  m 
specified  in  the  affidavit.^  Judgment  af->/ 
firmed.  '^ 

1  W.  U.  Tel.  Co.  V.  City  of  Philadelphia,  12 
Atl.  144;  City  of  Allentown  v.  W.  U.  Tel.  Co.; 
and  City  of  Chester  v.  Philadelphia,  R.  &  P.  Tel. 
Co.,  23  Atl.  1070. 


MUST   BE  FOR   PUBLIC   PURPOSE. 


25a 


BOROUGH  OP  SAYRE  v.  PHILLIPS. 

(24  Atl.  76,  148  Pa.  St.  482.) 

Supreme   Court  of   Pennsylvania.     April   18, 
1892. 

Appeal  from  court  of  common  pleas,  Brad- 
ford county. 

Action  of  debt  by  the  borough  of  Sayre 
against  Harry  Phillips  to  recover  a  penalty 
for  violation  of  an  ordinance  forbidding  ped- 
dling without  first  taking  out  a  license.  From 
a  judgment  for  defendant,  plaintiff  appeals. 

J.  B.  Niles,  Deloss  Rockwell,  J.  C.  Horton, 
and  H.  F,  Maynard,  for  appellant.  D'A. 
Overton,  John  C.  Ingham,  and  Rodney  A. 
Mercur,  for  appellee. 

WILLIAMS,  J.  The  business  of  peddling 
has  been  treated  as  a  proper  subject  for  police 
regulation  and  control  in  this  state  since  1784. 
The  legislature  has  forbidden  it  to  all  un- 
licensed persons,  and  has  prescribed  the  con- 
ditions on  which  licenses  may  be  oljtaiued 
from  the  courts.  The  necessity  for  such  leg- 
islation is  a  question  for  the  lawmakers.  The 
validity  of  any  particular  statute  relating  to 
the  subject  is  a  question  for  the  courts.  The 
act  of  1784,  and  the  supplementary  acts,  re- 
lating to  the  business  of  peddling,  have  been 
held  to  be  valid,  as  an  exercise  of  the  police 
power,  in  many  cases,  among  the  more  recent 
of  which  are  Warren  Borough  v.  Geer,  117 
Pa.  St.  207,  11  Atl.  415;  Borough  of  Sharon 
V.  Hawthorne,  123  Pa.  St.  106,  16  Atl.  835; 
Com.  V.  Gardner,  133  Pa.  St.  284,  19  Atl.  550; 
Titusville  v.  Brennen,  143  Pa.  St.  642,  22 
Atl.  893.  By  the  organization  of  a  city  or 
borough  within  its  borders  the  state  imparts 
to  its  creature,  the  municipality,  the  powers 
necess:ary  to  the  performance  of  its  functions, 
and  to  the  protection  of  its  citizens  in  their 
persons  and  property.  The  police  power  is 
one  of  these.  Ordinances  of  cities  and  bor- 
Dughs,  passed  in  the  legitimate  exercise  of 
this  power,  are  therefore  valid.  An  ordinance 
prohibiting  the  business  of  peddling  within 
the  municipal  limits  without  a  license  from 
the  proper  municipal  officer  would  seem  to  be 
as  clearly  justified  by  the  police  power  as 
a  statute  prohibiting  the  same  business 
throughout  the  commonwealth.  But  it  is 
very  clear  that  a  police  regulation  must  be  di- 
rected against  the  business  or  practice  that 
is  harmful,  not  against  one  or  some  of  the 
persons  who  may  be  engaged  in  it.  The  laws 
of  the  state  are  so  framed.  They  are  directed 
against  the  business  of  peddling.  The  ordi- 
nances of  cities  and  boroughs  must,  in  order 
to  be  supported  as  an  exercise  of  the  police 
power  residing  in  the  municipality,  be  direct- 
ed in  like  manner  at  the  business.  If  a  stat- 
ute or  a  municipal  ordinance  is  in  reality  di- 
'  rected  only  against  certain  persons  who  are 
engaged  in  a  given  business,  or  against  cer- 
tain commodities,  in  such  manner  as  to  dis- 
criminate between  the  persons  who  are  en- 
gaged in  the  same  trade  or  pnrsuit,  in  aid 


of  some  at  the  expense  of  others,  such  stat- 
ute or  ordinance  is  not  a  police,  but  a  trade, 
regulation;  and  it  has  no  right  to  shelter  it-  / 
self  behind  the  police  power  of  the  state  or 
the  municipality.  A  law  that  should  prohibit 
all  persons  peddling  goods  manufactured  or 
produced  in  other  states,  and  permit  the  same 
persons  to  peddle  goods  of  the  same  charac- 
ter manufactured  or  produced  in  this  state, 
would  be  a  trade  regulation,  discriminating 
between  the  productions  of  this  and  sister 
states,  and  would  be  incapable  of  enforce- 
ment, because  in  violation  of  the  constitution 
of  the  United  States.  So  a  law  that  should 
forbid  the  courts  to  grant  a  peddler's  license 
to  any  person  resident  in  any  other  state,  but 
should  authorize  the  granting  of  licenses  to 
citizens  of  this  state,  would  be  bad  for  the 
same  reason.  When  the  state  creates  a  city 
or  borough,  it  cannot  confer  upon  the  mu- 
nicipality powers  that  the  state  does  not  pos- 
sess. It  cannot  give  its  creature  immunity 
from  the  settled  limitations  that  bind  its  own 
action.  The  municipality  remains  a  part  of 
the  state  after  its  creation  as  truly  as  the 
town  or  village  was  a  part  of  the  state  be- 
fore it  acquired  a  corporate  character.  Only 
in  matters  of  local  government  is  its  situation 
changed.  It  can  have  no  better  right  to 
adopt  discriminating  trade  regulations  than 
the  state  has. 

/  AVe  come  now  to  consider  the  ordinance  on 
which  this  case  depends.  It  professes  to  pro- 
hibit all  persons  from  engaging  in  the  busi- 
ness of  peddling  or  selling  goods  from  house 
to  house,  by  sample  or  otherwise,  without  a 
borough  license;  and  it  fixes  the  price  of  a 
license  at  a  figure  that  makes,  as  it  was  evi- 
dently intended  to  make,  the  ordinance 
amount  to  prohibition.  So  long,  however,  as 
it  bears  upon  all  persons  impartially  it  may 
fairly  claim  to  be  a  police  regulation  intend- 
ed to  destroy  a  business  that  was  regarded  as 
injurious,  but  at  the  end  of  the  prohibiting 
section  of  the  ordinance  a  proviso  may  be 
found  whicli  exempts  all  residents  of  the 
borough  of  Sayre  from  its  operation.  The 
proviso  converts  the  police  regulation  into  a 
trade  regulation.  The  ordinance,  taken  as  a  | 
whole,  does  not  prohibit  an  injurious  busi-  I 
ness,  but  injurious  competition.  That  the 
resident  dealer  and  peddler  may  enjoy  a  ' 
larger  trade,  the  nonresident  peddler  is  shut  I 
out.  If  the  borougli  authorities  may  law- 
fully regulate  the  business  of  peddling  for  the 
benefit  of  residents,  we  see  no  reason  wliy 
they  may  not  lay  their  hands  in  like  manner 
on  every  department  of  trade  and  of  profes- 
sional labor,  and  protect  the  village  lawyer 
and  doctor  as  well  as  the  village  gi'ocer  and 
peddler.  We  are  reminded  by  the  appellant 
that  this  ordinance  is  lilve  that  which  came 
into  notice  in  Warren  Borough  v.  Geer,  supra; 
and  it  is  urged  that  the  question  now  imder 
consideration  ought,  therefore,  to  be  regard- 
ed as  ruled  by  that  case.  That  case  was  well 
decided  on  the  only  issue  presented  by  it. 
The  plaintiff  set  out  in  the  declaration  the 


254 


MUNICIPAL  TAXATION. 


ordinance  of  the  borough,  and  charged  that 
the  defendant  had  violated  it  by  canvassing 
from  house  to  house  within  the  borough.  The 
defendant  demurred,  thus  admitting  the  acts 
charged  and  denying  the  power  of  the  bor- 
ough to  require  one  engaged  in  canvassing  to 
take  a  license.  The  court  below  held  that  the 
defendant  was  entitled  as  of  common  right  to 
pursue  his  business,  and  that  the  borough  was 
without  the  power  to  forbid  it.  The  question 
came  to  this  court  in  the  form  that  it  had 
been  disposed  of  in  the  court  below,  as  a 
question  of  power  in  the  borough  to  require 
a  license  from  peddlers  and  canvassers,  and 
we  held  that  the  power  existed  under  the  act 
of  incorporation,  and  under  the  general  bor- 
ough law  of  1851.     Our  Brother  Green,  who 


delivered  the  opinion  of  this  court,  stated  the 
point  in  controversy  thus:     "The  only  ques- 
tion,  therefore,   is   whether   the   borough   of 
Warren  possesses  by  either  express  grant  or 
necessary  implication  the  right  to  enact  the 
ordinance"  forbidding  the  exercise  of  defend- 
ant's employment  without  a  license.    We  ad- 
here to  the  doctrine  of  that  case.    The  pres- 
ent question  is  whether,  under  the  pretense  i 
of  police  control,  trade  may  be  regulated  in  ' 
the  interest  of  resident  dealers  by  making  the  i 
same  business  a  lawful  one  to  all  who  live  on  I 
one  side  of  a  municipal  Une,  and  an  unlawful 
one  to  all  who  live  on  the  other  side.     We 
are  very  clear  in  our  conviction  that  this  can- 
not be  done,  and  for  this  reason  the  judgment 
is  aflirmed. 


WHAT  PROPERTY  EXEMPT. 


255 


VON  STEEX  et  al.  v.  CITY  OF  BEATRICE. 

(54  N.  W.  677,  36  Neb.  421.) 
Supreme  Court  of  Nebraska.      March  16,  1893. 

Appeal  from  district  court.  Gage  county; 
Babcock,  Judjje. 

Action  by  Jalm  H.  von  Steen  and  another 
against  tlie  city  of  Beatince  to  enjoin  defend- 
ant from  concluding  a  contract  for  slroot  im- 
provements. Tliere  wa.s  judgment  granting 
perpetual  injunction,  and  defendant  appeals. 
Affirmed. 

W.  C.  Le  Hane,  Griggs,  Rinaker  &  Bibb, 
and  L.  M.  Pemborton,  for  appellant.  E.  O. 
Kretsinger  and  E.  R.  Fogg,  for  aippellees. 

POST,  j.i  ******  » 
2.  The  total  frontage  In  district  No.  9  is, 
according  to  the  record,  3,280  feet,  and  the 
I)etition  purports  to  have  been  signed  by 
the  owners  of  1,855  feet  thereof.  It  is  con- 
tended that  the  following  names  and  de- 
scriptions of  property  were  illegally  counted 
ou  the  petition:  "Alex  Graham,  Chair'm 
Co.  Board,  S.  1/2  lot  11,  block  24,  440  feet; 
Rt.  Rev.  Thos.  Bonacum,  per  Rev.  A.  J. 
CopeUen,  lots  11,  12,  13,  and  14,  block  7, 
200  feet;  Beatrice  school  district,  by  G.  C. 
Soulsbury,  president,  block  21,  300  feet;  J. 
E.  Hays,  lot  3,  block  10,  60  feet;  First 
Christian  Church,  by  John  Ellis,  Ch.  of  tinis- 
tees,  lot  7,  in  block  35,  140  feet;  Charles  H. 
Spencer,  lots  5,  6,  7,  8,  and  9,  block  25,  125 
feet;  John  A.  Moor,  per  J.  A.  Forbes,  agent, 
lot  8,  block  7,  70  feet;  Richard  Lowe,  lot  6, 
block  22,  140  feet."  It  will  be  observed 
that  of  the  frontage  represented  by  the  pe- 
tition 440  feet  is  the  property  of  Gage  coun- 
ty, and  300  feet  belongs  to  the  school  dis- 
trict of  Beatrice.  The  question  whether 
public  property  of  like  character,  viz.  the 
coimty  courthouse  and  gi'ounds,  and  the 
city  schoolhouse  and  grounds,  is  liable  for 
special  assessments  for  public  improve- 
ments, as  in  the  case  for  the  paving  of 
streets  adjacent  thereto,  has  never  been 
presented  to  the  courts  of  this  state.  We 
find  in  the  decisions  upon  the  subject  an  ir- 
reconcilable conflict  of  opinion.  It  is  provid- 
ed by  section  2  of  our  revenue  law  (chapter 
77,  Comp.  St.)  that  "the  following  property 
shall  he  exempt  from  taxation  in  this  stjito: 
First,  the  property  of  the  state,  comities, 
and  municipal  corporations,  both  real  and 
personal;  second,  such  other  property  as 
may  be  used  exclusively  for  agricultural 
and  horticultural  societies,  for  school,  reli- 
gious, cemetery,  and  charitiible  purposes." 
Similar  provisions  have  been  construed  as 
exempting  the  property  mentioned  therem 
from  all  contributions  in  the  natftre  of  tax- 
ation, whether  imposed  for  public  purpo.ses, 
under  the  general  revenue  laws,  or  for  local 
Improvements,  such  as  are  denominated 
"special  assessments."  Opposing  tliis  view  is 
the  doctrine,  quite  as  well  sustained  by  au- 
tliority,    that    the    immunity    from    taxation 


1  Part  of  the  opinion  is  omitted. 


relates  only  to  general  state,  county,  or 
other  municipal  taxes,  and  not  to  assess- 
ments for  improvements  made  under  spe- 
cial laws  or  ordinances,  and  local  in  their 
character.  It  is  not  deemed  necessary  to 
review  the  cases  cited  ra  support  of  the 
dilfei'cnt  views  by  their  respective  advo- 
cates, since  the  solution  of  the  question 
here  presented  depends  upon  a  constnic- 
tion  of  the  charter  of  the  defendant  city. 
In  subdivisi(m  58,  §  52,  art.  2,  c.  14,  Comp. 
St.,  as  amended  in  1887,  we  find  the  follow- 
ing language:  "If  in  any  city  governed  by 
this  act  there  shall  be  any  real  estate  not 
subject  to  assessment  or  special  taxes  for 
paving  purposes,  the  mayor  and  coimcil 
shall  have  the  power  to  pave  in  front  of  the 
same,  and  to  pay  the  cost  thereof  that 
would  otherwise  be  chargeable  on  such  real 
estate,  in  the  same  manner  as  herein  pro- 
vided for  the  paving  of  intersections  of 
streets  and  paying  therefor."  The  same 
provision  is  found  in  the  acts  for  the  incor- 
poration and  govei-ument  of  cities  of  the 
first  class  having  over  25,000  inhabitants, 
and  of  metropolitan  cities.  Section  69,  c. 
12a,  and  section  09,  c.  13a,  Comp.  St.  The 
meaning  of  the  language  quoted  becomes 
apparent  only  when  we  assume  that,  in  the 
opinion  of  tlie  legislature,  public  property 
like  that  here  involved  is  not  liable  to  as- 
sessment for  the  improving  of  the  streets, 
under  the  ordinances  of  the  city.  It  seems 
clear  to  us  that  the  language  "real  estate 
not  subject  to  assessment  or  special  taxes 
for  paving  purposes"  has  reference  to  the 
property  enumerated  in  section  2  of  the  rev- 
enue law;  for,  so  far  as  we  are  aware,  no 
claim  of  exemption  has  been  made  in  favor 
of  any  other  property.  We  are  confirmed 
Ln  this  view  from  an  examination  of  the  act 
of  March  14,  1889,  entitled  "An  act  to  in- 
corporate cities  of  the  firet  class  having 
more  than  eight  thoiisand,  and  loss  than 
twenty-five  thousand,  inhal)itants,  and  regu- 
lating their  powers,  duties,  and  govern- 
ment." The  last-named  act,  so  far  as  it  re- 
lates to  improvements  of  streets  and  alleys, 
appears  to  be  a  substantial  copy  of  the 
charter  of  the  defendant  city,  viz.  the  act 
of  1887;  but,  instead  of  the  provision  above 
quoted  from  the  act  of  1887,  we  find  the 
following:  "Provided,  further,  that  if  in 
any  city  governetl  by  the  provisions  of  this 
act  tliere  shall  be  any  real  estate,  belong- 
ing to  any  county,  school  district,  or  other 
municipal  or  quasi  mimicipal  corporation, 
abutting  upon  the  street  whereon  jiaving  or 
other  special  improvements  have  been  or- 
dered, it  shall  be  the  duty  of  the  board  of 
county  commissioners,  board  of  education, 
or  other  proper  officers  to  pay  such  special 
taxes;  and,  in  the  event  of  the  neglect  or 
refusal  of  such  board  or  other  officers  to 
levy  and  collect  the  taxes  necessary  to  pay  for 
such  impi'ovements,  the  city  may  recover  the 
amount  of  such  special  tjixes  in  a  proper  ac- 
tion, and  the  judgment  thus  obtained  may  be 


256 


MUNICIPAL  TAXATION. 


[  enforced  In  the  same  manner  as  other  judg- 
1  uicnts  against  municipal  corporations."    Tlie 
foregoing  is  tlie  only  express  provision  witli- 
i  in  our  Ivuowledge  in  any  of  the  acts  for  the 
I  government  of  cities  of  the  several  classes, 
I  imposing  upon  the  state,  counties,  or  other 
municipalities  a  habihty   for  special   assess- 
ments.    It  is  not  tlie  policy  of  the  law  to 
empower  cities  in  this  state  to  expend  pub- 
lic funds  for  improvements  where  no  liabil- 
ity exists  therefor.     When  we  consider  the 
several  provisions  for  the  payment  by  cities 
for    paving    streets    adjacent    to    property 
not   Uable   for    special    taxes   in   connection 
with   the   exception   above   noted,   the    only 
reasonable  construction  thereof  is  that  the 
exemption  from  taxation  in  the  revenue  law 
in  favor  of  state,  county,  and  school-district 
property  was  intended  to  apply  to  and  in- 
clude assessments  like  that  involved  in  this 


controversy.  Although  it  is  probable  the 
property  of  the  Catholic  Church  is  entitled 
to  exemption  upon  the  same  groimd  as  that 
of  the  county  and  school  district,  the  argu- 
ment for  its  rejection  is  rather  on  the 
groimd  of  want  of  authority  of  the  Rever- 
end Coppellen  to  sign  in  behalf  of  the 
bishop  of  Lincoln,  who  holds  the  title  there- 
to. In  view  of  the  conclusion  already  stat- 
ed, we  have  no  occasion  to  consider  that 
question;  for  when  we  deduct  440  feet  on 
account  of  property  of  the  county,  and  300 
feet  for  the  school  district,  it  is  evident  that 
the  petition  was  insurticient  to  confer  juris- 
diction upon  the  city  council,  and  that  the 
ordinance  creating  district  No.  9,  and  all 
acts  in  pm'suance  thereof,  are  void.  2 

******* 

2  Part  of  the  opinion  is  omitted. 


WHAT  PROPERTY  EXEMPT. 


257 


KILOUS  V.  TRUSTEES  OF  THE  OIlPH.iN- 
AGE  OF  THE  GOOD  SHEPHERD. 

SAME  V.  TRU.STEES  OF  THE  CHURCH 
HOME  FOR  FEMALES. 

(22  S.  W.  750,  9i  Ky.  439.) 

Court  of  Appeals  of  Kentucky.     June  1,  1S93. 

Appeals  Irom  Louisville  chancery  court. 

"To  be  ottieially  reported." 

Two  actions  by  John  Kilgus,  one  against 
the  trustees  of  the  Orphanajie  of  the  Goofl 
Shepherd,  and  the  other  against  the  Church 
Home  for  Females,  to  enforce  liens  on  de- 
fendants' property  for  the  proportionate  cost 
of  improving  an  adjacent  street.  From  judg- 
!neut.s  in  defendants'  favor,  plaintiff  appeals. 
Reversed. 

H.  S.  Barker  and  Lane  &  Burnett,  for  appel- 
lant.    Strother  &  Gordon,  for  appellees. 

LEWIS,  J.  These  two  actions,  brought  by 
appellant  against  appellees,  respectively,  were 
trietl  and  determined  bj'  the  lower  court  to- 
gether, as  will  be  done  on  this  appeal.  The 
object  of  each  is  enforcement  of  a  lien  on  a 
lot  of  land  for  proportionate  cost  of  improv- 
ing an  adjacent  street  by  appellant  in  pm*- 
suance  of  an  ordinance  of  the  general  council, 
and  under  contract  with  the  city  of  Louis- 
ville. There  is  no  question  made  in  either 
action  about  his  compliance  with  tenns  of 
that  contract,  nor  as  to  correctness  of  the 
amounts  assessed  and  fixed;  but  the  ground 
relie<l  on  as  defense  in  each  case  Is  exemption 
from  such  assessment  existing  in  virtue  of 
special  acts  of  the  general  assembly.  It  ap- 
pears that  in  1858  H.  P.  .Johnston  conveyed 
to  W.  Cornwall  and  others,  in  trust,  a  lot 
upon  which  to  establish  an  orphan  asyhnn, 
to  be  used  as  a  free  home  for  educating  and 
instructing  indigent  orphan  boys  in  useful 
arts  and  trades;  and  in  1ST2  "an  act  to  incor- 
porate the  trustees  of  the  Orphanage  of  the 
Good  Shepherd  in  the  city  of  Louisville"  was 
passed,  whereby  W.  Cornwall  and  others, 
then  trustees  under  the  deed  mentioned,  were 
declared  a  body  corporate,  to  whom  the  sev- 
eral county  courts  of  the  commonwealth  were 
authorized  to  bind  orphans  upon  terms  agreed 
to.  Section  0  of  that  act  is  as  follows:  "That 
all  property  now  held  for  the  benefit  of  said 
orphanage,  and  all  which  hereafter  may  be  so 
held,  shall  be,  and  the  same  is  hereby,  ex- 
empted from  assessment  and  taxation  under 
the  revenue  laws  of  the  commonwealth,  or  un- 
der any  ordinance,  resolution,  or  other  act  of 
the  city  of  Louisville,  and  all  such  propert.v  is 
hereby  freed  from  future  charge  and  payment 
of  taxes  to  the  state  and  to  the  city."  In 
1S72  John  P.  Morton  conveyed  to  James 
Craik  and  others  a  lot  upon  which  were  to 
be  erected  buildings  suitable  for  a  church 
home  for  females,  an  infirmary  for  females, 
an  infirmary  for  males,  and  a  chapel;  and 
subsequently  "An  act  to  incorporate  the 
Church  Home  for  Females  and  Infirmary  for 
the  Sick"  was  passed,  whereby  .lames  Craik 
ABB.CORP.— 17 


and  others  were  created  a  body  corporate. 
Section  3  of  that  act  is  in  the  same  language 
as  section  G  of  the  first-mentioned  act  just 
quoted,  differing  from  it  only  in  application. 
The  two  institutions  thus  created  being  man- 
ifestly intended  for  purposes  of  purely  public 
charities,  were  by  section  9,  art.  1,  c.  92,  Gen. 
St.,  independent  of  the  special  acts,  exempted 
from  taxation  for  governmental  purix)ses 
as  well  of  the  city  of  Louisville  as  of  the 
commonwealth.  But  taxation  for  ordinary 
purposes  of  government  does  not  properly 
comprise  local  assessment  for  construction  of 
a  street,  and,  as  a  consequence,  exemption  by 
statute  from  the  first  does  not  necessarily  or 
properly  involve  exemption  from  the  latter. 
Accordingly,  in  Baptist  Church  v.  McAfee,  8 
Bush,  508,  it  was  held  that  exemptions  made 
in  the  General  Statutes  in  favor  of  church 
property  apply  only  to  taxation  for  general 
purposes  of  government,  state,  county,  and 
municipal,  and  that,  therefore,  property  of 
that  church  was  liable  for  payment  of  its 
proper  proportion  of  cost  of  constructing  the 
particular  street  there  in  question.  In  Zabel 
V.  Orphans'  Home  (Ky.)  17  S.  W.  212,  the  ap- 
pellant, a  contractor,  sued  to  enforce  a  lien 
on  property  of  appellee  for  its  proportion  of 
the  cost  of  constructing  an  adjacent  alley, 
from  which  the  latter  claimed  exemption  in 
virtue  of  a  special  act  of  the  legislature.  In 
that  case  the  following  extract  from  Bur- 
roughs on  Taxation  (page  461)  was  quoted 
and  approved:  "The  word  'tax'  or  'taxes' 
does  not  include  local  assessments,  unless 
there  be  something  in  the  statute  in  which  it 
is  found  to  indicate  such  an  intention.  The 
question  frequently  arises  in  the  constniction 
of  statutes  exempting  persons  or  corporations- 
from  payment  of  taxes,  and  the  almost  un- 
broken current  of  authority  is  that  such  ex- 
pression does  not  include  local  assessment." 
The  question,  therefore,  in  this  case  is  wheth- 
er the  two  acts  relied  on  by  appellees,  resijec- 
tively,  were  intended  by  the  legislature  to  ex- 
empt their  property  from  local  assessment. 
In  Zabel  v.  Orphans'  Home  the  provision  of 
the  special  act  is  as  follows:  "The  property, 
money,  estate,  and  rights  of  said  corporation 
shall  be  exempt  from  all  taxation  whatever." 
But  it  was  there  held  the  word  "tax"  did  not 
embrace  local  assessment,  and  that  something 
more  was  needed  to  show  such  was  the  legis- 
lative intention.  The  language  of  the  two 
acts  we  are  considering  is,  however,  some- 
what different  from  that  of  the  act  just  men- 
tioned, for  it  is  in  both  of  them  provided  the 
property  shall  be  exempt  from  assessment  and 
taxation  under  revenue  laws  of  the  common- 
wealth, and  also  under  ordinances  of  the  city 
of  Louisville.  But  the  word  "assessment," 
which  means  laying  a  tax,  or  determining  the 
share  of  tax  to  be  paid  bj-  each  individual,  re- 
lates as  well  to  taxes  for  support  of  govern- 
ment as  to  taxes,  or  rather  enforced  contribu- 
tions, for  construction  of  streets  or  other  lo- 
cal improvements;  for  the  act  of  assessing 
must  precede  collection  in  either  case.    It  does 


258 


MUNICIPAL  TAXATION. 


I  not,  therefore,  seem  to  us  that  the  word  "as- 
I  sessment,"  used  as  it  is  in  the  two  special 
,  statutes,  without  qualification  or  explanation, 
necessarily  or  fairly  indicates  legislative  in- 
.  tention  to  exempt  the  property  of  appellees 
from  any  other  than  ordinary  taxation  for 
1  support  of  the  state  and  municipal  govern- 
ments;  and,  not  being  clearly  and  expressly 
r  exempted  from  due  proportion  of  the  cost  of 
I  constructing  adjacent  streets,   it  cannot   be 
lield  so  exempt  without  violating  a  well-estab- 
lished rule  of  construction,   for,   as  said   in 
I  Sedgwick  on  Statutory  &  Constitutional  Law, 
I  (page  344,)  statutes  under  which  exemptions 
I  from  common  bm-dens  are  claimed  "are  re- 
garded with  a  jealous  eye,  and  strictly  con- 
strued."    In  support  of  the  construction  we 
have  given  the  two  statutes  in  question  we 
cite  the  case  of  State  v.  Mayor,  etc.,  of  New- 
ark, 35  N.  J.  Law,  157.    There  the  Protestant 
Foster  Society  claimed  exemption  from  the 
cost  of  constructing  or  improving  streets  un- 
der its  charter,  by  which  it  was  enacted  that 
the  property  of  the  society  "shall  not  be  sub- 
ject to  taxes  or  assessments,"  which  is  nearly 
the  same  language  used  in  the  two  statutes 
we  are  considering.     But  the  court  in  that 
case  held  that  the  word  "taxes"  must,  in  the 


absence  of  any  clear  indication  to  the  con- 
trary, be  understood  to  refer  exclusively  to 
the  ordinary  public  taxes;  and  that  the  word 
"assessments"  has  reference  to  burdens  of  the 
same  general  character  as  those  expressed  in 
the  word  "taxes,"  and  was  not  intended  to 
include  local  assessments  for  municipal  pur- 
poses. In  our  opinion,  a  statute  should  never 
be  so  construed  as  to  exempt  a  particular  per- 
son or  corporation  from  taxation  for  any  pur- 
pose, whereby  the  burden  falls  so  much  heav- 
ier on  others  having  no  greater  interest  at 
stake  or  duty  to  perform,  unless  the  language 
used  clearly  and  expressly  requires  it  to  be 
done.  In  these  cases  it  may  be  fairly  pre- 
sumed that,  if  the  legislature  had  intended  to 
exempt  the  property  of  appellees  from  the  cost 
of  local  improvements,  it  would  have  been 
plainly  and  fully  indicated  by  additional  or 
other  words  than  the  single  and  insufl3cient 
term  "assessment."  Whether  the  two  stat- 
utes would  be  valid  if  susceptible  of  the  con- 
struction contended  for  by  appellees  is  a  ques- 
tion we  need  not  determine,  because  we  think 
the  exemption  claimed  was  not  granted. 
Wherefore  the  judgment  in  each  case  is  re- 
versed, and  cause  remanded  for  proceedings 
consistent  with  this  opinion. 


STATUTORY  EXE:VirTIONS  HOW  CONSTRUED. 


259 


CITY  OF  CLINTON,  to  Use  of  THORNTON 
et  al.,  V.  HENKY  COUNTY. 

(22  S.  W.  494,  115  Mo.  557.) 

Supreme  Court  of  Missouri,  Division  No.  1. 
May  8,  1893. 

Appeal  from  circuit  court,  Henry  county;  D. 

A.  De  Aruiond,  .Judge. 

Action  by  the  city  of  Clinton,  to  the  use  of  B. 

B.  Thornton  and  others,  against  Henry  county, 
on  special  tax  bill.  Judgment  was  rendered 
for  defendant,  and  plaintiff  appeals.    Affirmed. 

Peak  &  Ball  and  W.  C.  Stewart,  for  appel- 
lant. James  Parks  &  Son  and  Pratt,  Feny  & 
Hagerman,  for  respondent. 

BLACK,    C.   J.i        *        *        *        *        •        • 

1.  The  first  inquiry  is  whether  the  constitu- 
tion or  statute  exempts  this  property  fi'om  such 
charges.  Section  6,  ai't.  10,  of  the  constitu- 
tion, provides  that  "the  property,  real  and  per- 
sonal, of  tlie  state,  counties,  aud  other  munic- 
ipal coiporatious.  and  cemeteries,  shall  be  ex- 
empt from  taxation."  And  section  7504,  Kev. 
St.  18.S9,  provides:  "The  following  subjects 
are  exempt  from  taxation:  *  *  *  Foui'th, 
lands  and  other  property  belonging  to  any  city, 
county,  or  other  municipal  corporation  in  this 
state,  including  market  houses,  towTi  halls,  and 
other  public  structures,  with  their  furuitm-e 
and  eciuipments,  and  all  public  squares  aud  lots 
kept  open  for  health,  use,  or  ornamient,"  etc. 
While  the  statute  and  constitution  speak  of 
taxes  and  taxation,  they  do  not  mention  local 
assessments.  It  is  true  such  assessments  are 
levied  by  virtue  of  the  taxing  power  of  the 
state,  but  there  is  a  broad  distinction  between 
local  assessments  and  taxes  levied  for  gen- 
eral pubhc  purposes.  Thus,  it  was  held  in 
Lockwood  V.  City  of  St.  Louis,  24  Mo.  20,  that 
church  property  was  liable  for  special  sewer 
assessments,  though  the  •  general  authority 
given  to  the  city  to  levy  and  collect  taxes  was 
confined  to  "property  made  taxable  by  law," 
and,  by  the  general  law,  cHurch  property  was 
expressly  exempted  from  state  and  county  tax- 
ation. In  Sheehan  v.  Hospital,  50  Mo.  156,  the 
-character  of  the  defendant  exempted  its  prop- 

1  Part  of  the  opinion  is  omitted. 


orty  from  "tax-ition  of  every  kind,"  and  yet  its 
real  property  was  held  lia])le  for  special  street 
improvement  assessments.  The  exemption  was 
lield  to  relate  only  to  ordinary  taxes  levied  for 
general  purposes,  and  not  to  special  improve- 
u'.cnt  assessments.  The  whole  subject  was 
again  considered  in  the  recent  case  of  FaiTar 
V.  City  of  St.  Louis,  80  Mo.  379.  The  a.'^sess- 
nicnts  there  in  question  were  aboiit  to  be  levied 
for  the  piu'pose  of  paving,  curbing,  and  gutter- 
ing a  street.  The  law  under  which  the  work 
M'as  done  provided  that  the  cost  tliereof  should 
be  levied  on  the  abutting  i^roperty  according 
to  the  front  feet  of  each  lot,  and  it  was  insisted 
that  the  law  was  void  because  it  violated  that 
clause  of  the  present  constitution  which  de- 
clares that  "all  property  subject  to  taxation 
shall  be  taxed  in  proportion  to  its  value;"  but 
this  court  held  that  the  assessment  Avas  not  a 
tax,  within  the  meaning  of  that  clause  of  the 
constitution.  It  was  also  held  that  special  lo- 
cal assessments  were  not  included  in  the  words 
of  the  eleventh  section  of  article  10  of  the  con- 
stitution, which  declare  that  "said  restrictions 
as  to  rates  shall  apply  to  taxes  of  every  kind 
and  descnption.  whether  general  or  special." 
It  must  be  taken  as  settled  law  that  the  clause 
of  the  constitution  and  the  general  law  before 
quoted  do  not  refer  to  or  include  special  local 
assessments.  It  follows  that  this  property,  • 
though  held  and  used  for  public  purposes,  is  / 
not  exempt  from  local  assessments,  either  by 
the  constitution  or  general  law.  Indeed,  the 
general  statute,  and  the  clause  of  the  consti-  I 
tution  relating  to  the  exemption  of  property  j 
fi-om  taxation,  have  nothing  whatever  to  do 
with  this  case.  The  question  whether  public  , 
property,  such  as  courthouse  propeiiy,  should  / 
share  in  paying  for  street  improvements,  is  one 
open  to  the  legislative  will.  We  must  therefore 
look  to  the  statute  relating  to  cities  of  the  third 
class  to  see  what  the  legislature  has  declared 
upon  this  subject.  We  repeat  that  the  consti- 
tution, and  general  law  relating  to  exemption 
from  taxation,  have  no  bearing  uiwn  the  issue 
of  law  in  this  case.  The  question  is  one  of 
delegated  power,  and  not  of  exemption  from 
taxation.  2 

*  Part  of  the  opinion  is  omitted. 


260 


MUNICIPAL  TAXATION. 


CHICAGO,  M.  &  ST.  P.  RY.  CO.  v.  CITY  OF 
MILWAUKEE. 

(62  N.  W.  417,  89  Wis.  506.)' 

Supreme  Court  of  Wisconsin.     March  5,  1895. 

Appeal  from  circuit  court,  Milwaukee  county; 
D.  H.  Johnson,  Judge. 

Action  by  the  Chicago,  Milwaukee  &  St. 
Paul  Railway  Company  against  the  city  of 
Milwaukee  to  have  an  assessment  of  bene- 
fits made  by  the  board  of  public  works  of 
the  defendant  city  against  property  of  plain- 
tiff for  opening  of  a  public  street  set  aside. 
From  a  judgment  affirming  the  assessment, 
plaintiff  appeals.     Reversed. 

Burton  Hanson  and  C.  H.  Van  Alstine,  for 
appellant.     C.  H.  Hamilton,  for  respondent 

PINNBY,  J.  1.  It  is  contended  that  the  as- 
sessment in  question  is  authorized  by  subdivi- 
sion 14,  §  1038,  Rev.  St.  Neither  this  section, 
nor  the  chapter  in  which  it  is  foimd,  ti'eats  of  or 
has  any  relation  to  assessments  for  special  im- 
provements, but  relates  to  general  taxation  only. 
This  section  declares  what  property  shall  be 
exempt  from  such  taxation,  and  the  subdivi- 
sion relied  on  is  that  "the  track,  right  of 
waj',  depot  grounds  and  buildings,  machine 
shops,  rolling  stock,  and  all  other  property 
necessarily  used  in  operating  any  raih-oad  in 
this  state  belonging  to  any  railroad  company, 
including  pontoon  or  pile  and  pontoon  rail- 
roads, shall  henceforth  remain  exempt  from 
taxation  for  any  purpose,  except  that  the 
same  shall  be  subject  to  special  assessment 
for  local  improverhents  in  cities  and  vil- 
lages." It  had  been  held  prior  to  this  statute 
that  such  assessments  were  special  taxes, 
imposed  upon  the  basis  of  special  benefits, 
and  they  had  been  distinguished  from  gen- 
eral taxes  by  the  name  of  "assessments." 
Weeks  v.  City  of  Milwaukee,  10  Wis.  256, 
260;  Hale  v.  City  of  Kenosha,  29  Wis.  605. 
And  the  object  of  the  exception,  which  is  in 
the  nature  of  a  proviso,  was  not  to  declare  a 
rule  upon  an  independent  subject,  but  to  con- 
fine the  exemption  to  the  subject  of  general 
taxation,  and  to  exclude  any  inference  of 
Intention  that  the  section  was  to  be  opera- 
tive as  to  special  taxes  or  assessments  (Endl. 
Interp.  St.  §§  184,  180);  and  the  exception 
could  have  no  operation  or  force  separate 
and  apart  from  the  provision  it  was  designed 
to  limit,  and  left  the  liability  of  such  prop- 
erty to  assessment  as  it  stood  before  the  stat- 
ute. This  is  evident  from  the  grouping  of 
the  kinds  of  property  named  in  the  section. 
The  "track,  right  of  way,  and  depot  grounds" 
are  classed  with  "rolling  stock,"  with  "all 
other  property  necessarily  used  in  operating 
any  railroad,"  and  "pontoon  or  pile  and  pon- 
toon railroads,"— kinds  of  property  which  it 
would  be  impracticable  to  subject  to  assess- 
ment for  local  improvements.  Oshkosh  Ry. 
Co.  V.  Winnebago  Co.  (at  the  present  term) 
61  N.  W.  1107. 

2.  Whether  the  track  and  right  of  way  of 
a  raih'oad  company  are  subject  to  assessment 


for  local  improvements  on  the  ground  of  spe- 
cial benefits,  under  the  language  of  statutes 
couched  in  general  terms  providing  for  such 
assessments,  is  a  question  upon  which  the 
courts  have  not  been  agreed.  The  system 
and  policy  of  each  state  enter  largely  into 
the  question,  and  give  to  it  a  local  charac- 
ter. By  the  charter  of  Milwaukee,  the  im- 
provement of  Commerce  street  was  made 
"chargeable  to  and  payable  by  the  lots  front- 
ing or  abutting  upon  such  street  *  *  *  to 
the  amount"  which  such  improvement  shall 
be  adjudged  by  the  board  of  public  works  to 
benefit  such  lots;  and  an  assessment  of  the 
amount  is  provided  for,  which  when  con- 
firmed by  the  council,  its  collection  may  be 
enforced  in  case  of  nonpayment  by  a  sale 
and  conveyance  of  the  lots  so  assessed.  City 
Charter,  Laws  1874,  c.  184,  subc.  7,  §§  2,  7. 
So  much  of  the  lots  in  question  as  were  oc- 
cupied by  the  tracks  of  the  railroad  and  sup- 
porting banks,  and  used  for  right  of  way 
purposes,  had  been  devoted  and  dedicated  to 
uses  in  which  the  public  had  an  important 
interest  of  a  probable  perpetual  duration; 
and  to  enforce  an  assessment  against  such 
right  of  way  and  track,  extending  about 
half  a  mile  in  distance,  by  a  sale  and  convey- 
ance, would  necessarily  dismember  and  break 
up  the  entirety  and  utility  of  the  road  as  a 
line  of  travel  and  commercial  intercourse, 
and  interfere  witb  and  impair  the  paramount 
interest  which  the  public  have  In  it  for  these 
purposes.  The  property  of  the  corporation 
in  its  road  and  appurtenances  essential  to  its 
operation  and  use,  annexed  to  the  franchise 
of  the  company  to  maintain  and  operate  its 
road,  is  an  entirety,  and  is  thus  charged  in 
the  hands  of  the  company  with  an  important 
trust  in  favor  of  the  public,  though  the  prop- 
erty in  all  other  respects  is  essentially  pri- 
vate, and  opei-ated  for  private  gain.  Public 
policy  would  seem  to  forbid  a  severance  and 
segrv?gation  of  its  several  special  or  particu- 
lar parts,  essential  to  the  exercise  of  the 
franchises  and  the  use  and  operation  of  the 
road  by  forced  sale  upon  legal  process,  or  for 
an  assessment.  If  the  general  language 
found  in  the  charters  of  cities  and  villages 
throughout  the  state  on  the  subject,  in  sub- 
stance the  same  as  the  provisions  of  the  char- 
ter in  question,  is  to  be  construed  as  applica- 
ble to  and  waiTanting  an  assessment  against 
the  track  and  right  of  way  or  other  prop- 
erty essential  to  the  exercise  of  the  franchise 
of  the  company  and  the  operation  of  its 
road,  then  every  railway  in  the  state  is  liable 
to  be  thus  severed,  and  its  continuity  de- 
stroyed, by  the  action  of  local  authorities  in 
any  city  or  village  through  which  it  passes, — 
a  result  which  we  are  persuaded  was  not 
contemplated  in  the  enactment  of  the  char- 
ter of  ^Milwaukee,  or  other  charters  for  local 
municipal  government.  AVhile  the  company 
may  be  compelled  by  mandamus  to  operate 
its  road  between  its  termini,  and  forfeiture 
of  its  franchises  may  be  adjudged  for  its  J 
failure   (People  v.  Albany   &  V.  R.  Co.,  24 


OF  CORPORATE  PROPERTY. 


261 


N.  Y.  201;  People  v.  Rome.  W.  &  O.  R.  Co., 
103  N,  Y.  108,  8  N.  E.  309;  Railroad  Co.  v. 
Hall,  91  U.  S.  3.')4;  State  v.  ^Yest  Wisconsin 
Ry.  Co.,  34  Wis.  215,  217),  the  company 
would  be  rendered  powerless  to  execute  its 
public  trust  and  discharge  its  public  duties. 
The  question  is  to  be  judged  by  the  conse- 
quences which  would  attend  a  complete  exer- 
cise of  the  power  of  assessment,  when  car- 
ried to  r,  sale  and  conveyance  of  the  property 
attenipced  to  be  charged.  The  authorities 
holding  that  neither  the  corporate  rights  and 
franchise  of  a  quasi  ijublic  corporation  can 
be  sold  on  execution,  nor  can  its  lauds  or 
works  essential  to  the  enjoyment  of  the  fran- 
chise be  separated  from  it  and  sold  under 
execution,  so  as  to  destroy  or  impair  the 
value  of  the  franchise,  were  cited  and  con- 
sidered in  Yellow  River  Imp.  Co.  v.  Wood 
Co.,  81  Wis.  559,  502,  51  N.  W.  1004;  and 
the  principle  was  asserted  in  Gue  v.  Canal 
Co.,  24  How.  263,  upon  the  ground  stated  in 
that  case  that  the  property  seized  was  of  lit- 
tle or  no  value  apart  from  the  franchise,  but 
was  essential  to  the  operation  of  the  canal, 
and  in  connection  with  it  Avas  of  great  value, 
and  would  be  rendered  vahioless  by  such 
sale,  and  that  the  franchise  by  which  the  use 
of  the  property  was  made  valuable  would 
not  pass  by  the  sale.  The  track  and  right  of 
way  in  this  case  are  cot  adapted  to  any  other 
profitable  use.  A  sale  of  such  property  on 
execution,  which  included  the  very  bed  of 
the  road  as  well  as  the  ground  needed  for 
depot  and  other  buildings,  was  held  invalid 
as  to  such  portions;  that  no  title  passed  to 
the  purchaser;  and  that  the  company  must 
be  protected  in  the  possession  of  all  that  was 
really  essential  to  the  enjoyment  of  its  fran- 
chise. Railway  Co.  v.  Colwell,  39  Pa.  St.  337. 
In  the  case  of  Yellow  River  Imp.  Co.  v.  Wood 
Co.,  supra,  it  was  held  that  the  principles 
mentioned  "apply  with  equal  force  to  tax 
proceedings,"  upon  the  ground  "that  the 
rights,  franchises,  and  plant  essential  to  the 
continued  business  and  purposes  of  a  quasi 
public  corporation  are  not  to  be  severed, 
broken  up,  or  destroyed  without  express  leg- 
islative authority,  but,  on  the  contrary,  are 
to  be  preserved  in  their  entirety,  and  for  that 
purpose  are  deemed  segregated  from  any 
other  property  owned  by  the  corporation." 
And  it  W'as  accordingly  held  that  the  value  of 
a  dam,  an  essential  portion  of  the  corporate 
righrs,  franchises,  and  plant  of  the  company, 
was  improperly  included  in  the  assessment 
of  the  tract  of  land  owned  by  the  company, 
and  upon  which  it  was  located,  and  that  the 
tax  extended  on  the  assessment  was,  for  that 
reason,  held  invalid  and  canceled.  To  the 
same  effect  is  Fond  du  Lac  Water  Co.  v. 
City  of  Fond  du  Lac,  82  Wis.  322,  52  N.  W. 
439,  w'here  it  was  held  that  an  assessment 
for  taxation  of  only  the  lots  upon  which  the 
pumping  woi-ks  and  the  station  of  the  com- 
pany were  situated  was  invalid;  that  the  as- 
sessment should  have  included  the  entire 
property    of   the    company,    its   mains,    pipes, 


and  hydrants,  throughout  the  city,  and  fran- 
chises and  privileges,  as  an  entirety,  so  as 
to  avoid  any  severance  upon  sale  for  nonpay- 
ment of  taxes.  These  cases  establish  the 
principle  that  the  general  provisions  of  the 
statute  concerning  the  levying  and  collec- 
tion of  taxes  are  to  be  con.-^trued  and  held 
subordinate  to  the  I'ule  against  severance 
and  segregation  of  the  property  essential  to 
the  continued  exercise  of  such  cori^orate 
franchises,  and  that  such  a  result  cannot 
be  efLected,  under  the  power  of  taxation, 
without  express  legi-slative  autliority,  and 
that  general  language  in  such  statutes  will 
not  be  held  to  authorize  such  a  result.  Man- 
ifestly, the  same  rule  of  construction  should 
be  applied  to  thegeneral  languageof  thechar- 
ter  of  Milwaukee,  and,  in  the  absence  of  an 
express  statute  authorizing  an  assessment  of 
the  tracks  and  necessary  right  of  way  of  a 
railwaj"  company,  the  assessment  and  sale 
thereof  for  benefits  by  local  improvements 
cannot  be  sustained.  People  v.  Gilon,  126 
N.  Y.  147,  27  N.  E.  282;  New  York  &  H.  R. 
Co.  V.  Town  of  Morrisania,  7  Hun,  0.'2. 

It  is  universally  conceded  that  all  such  as- 
sessments have  their  foundation,  rest  upon, 
and  cannot  lawfully  exceed,  the  special  bene- 
fits of  the  improvement  to  the  property 
against  which  the  cost  of  its  construction,  to 
that  extent,  is  charged.  2  Dill.  Mim.  Corp. 
761;  Weeks  v.  City  of  Milwaukee,  10  Wis. 
259,  261;  Hale  v.  City  of  Kenosha.  29  Wis. 
605,  006;  Donnelly  v.  Decker,  58  Wis.  405,  17 
N.  W\  389;  Hammett  v..  Philadelphia,  05  Pa. 
St  152  et  seq.  Such  an  assessment  cannot  I 
be  maintained  for  general  benefits  to  the  ' 
community  or  locality  resulting  from  the  i 
work.  For  the  payment  of  such  expend!-  i 
tures,  resort  must  be  had  to  general  taxation,  I 
the  rule  of  which  is  required  to  be  imiform.  ' 
"Whenever  an  assessment  upon  an  individual 
is  not  grounded  upon  and  measured  by  the 
extent  of  his  particular  benefit,  it  is  pro  tanto 
a  taking  of  his  private  property  for  public 
use,  without  any  provision  for  compensa- 
tion." Per  Sharswood,  J.,  in  Hammett  v. 
Philadelphia,  supra.  We  think  it  clear,  as  a 
matter  of  law,  that  property,  such  as  the 
railroad  tracks  and  necessary  right  of  way, 
cannot  be  said  to  be  benefited  by  the  im- 
provement in  question;  and  as  said  in  City 
of  Philadelphia  v.  Philadelphia  &  B.  R.  Co., 
33  Pa.  St.  43:  "It  Avould  be  strange  legisla- 
tion that  would  authorize  the  soil  of  one  pub- 
lic road  to  be  taxed  in  order  to  raise  funds  to 
make  or  improve  a  neighboring  one."  In 
Junction  R.  Co.  v.  City  of  Philadelphia,  88 
Pa.  St.  424,  it  was  held  that  the  city  could 
not  maintain  a  municipal  claim  for  paving 
against  or  opposite  the  roadbed  of  a  railroad 
company,  and  that  it  was  immaterial  wheth- 
er the  company  had  simply  a  right  of  way  or 
owned  the  bed  in  fee,  and  it  was  said  that 
"the  right  of  way  is  exclusive  at  all  times 
and  for  all  puii)oses,  and,  moreover,  it  is  per- 
petual"; and  that  "a  i-ailroad  from  its  veiy 
nature  cannot  derive  any  benefit  from  the 


262 


MUNICIPAL   TAXATION. 


paving,  while  all  the  rest  of  the  neighbor- 
hood may,  and  it  is  not  to  be  presumed  that 
the  compulsion  was  intended  to  be  applied 
to  such  companies."  To  the  same  purport  is 
Allegheny  City  v.  West  Pennsylvania  R.  Co., 
138  Pa.  St.  375,  21  Atl.  703,  in  which  it  was 
said  that,  "in  a  case  where  we  can  declare  as 
a  matter  of  law  that  no  such  benefit  can 
arise,  the  legislature  is  powerless  to  impose 
such  a  burden.  It  would  not  be  a  'tax,'  in 
any  proper  sense  of  the  term.  It  would  be 
a  forced  loan,  and  would  practically  amount 
to  confiscation."  In  City  oT  Bridgeport  y. 
New  York  &  N.  H.  R.  Co.,  3G  Conn.  255,  it 
was  held  that  contingent,  remote,  inapprecia- 
ble, or  uncertain  benefits  would  not  author- 
ize an  assessment,  where  an  assessment 
might  be  made  against  the  franchise  of  the 
company,  and  the  ti-ack  and  right  of  way 
ware  not  liable  to  such  assessment,  and  that 
the  benefit  in  such  case  must  be  direct,  im- 
mediate, and  certain.  New  York  &  N.  H.  R. 
Co.  V.  City  of  New  Haven,  42  Conn.  279. 
"The  fact  that  the  pavement  makes  access  to 
the  station  easier  shows  a  benefit  to  the  pub- 
lic at  large,  but  not  a  special  benefit  to  the 
company." 

It  was  contended  that  the  assessment  of 
the  board  of  public  works  is  conclusive;  that 
the  entire  strip  in  question,  including  the 
track  and  necessary  right  of  way,  was  bene- 
fited by  grading  and  paving  of  Commerce 
street;  and  that  the  only  question  open  to 
the  appellant  was  as  to  the  amount  of  bene- 
fits. Section  11,  subc.  7,  c.  184,  Laws  1874, 
and  the  cases  of  Teegarden  v.  City  of  Racine, 
56  Wis.  545,  14  N.  W.  614,  and  Dickson  v. 
City  of  Racine,  61  Wis.  545,  21  N.  W.  620, 
were  relied  on.  The  question  of  benefits  to 
the  track  and  right  of  way  being  a  legal  one, 
manifestly  tlje  assessment  cannot  be  conclu- 
i  sive,  but  the  position  is  no  doubt  correct  as 
to  the  rest  of  the  strip.  This  precise  ques- 
tion was  presented  in  Allegheny  City  v. 
Western  Pennsylvania  R.  Co.,  138  Pa.  St. 
382,  21  Atl.  763,  where  it  was  held  that 
"while   the    owner    of   an    ordinary    lot    of 


grouna,  whetner  an  individual  or  corpora-  I 
tion,  cannot  be  heard  to  defend  against  a  ' 
municipal  assessment  for  paving,  for  the  rea-  • 
son  that  the  law  presumes  such  property  is  j 
benefited,  yet,  in  the  case  of  the  roadbed  of 
a  railroad,  the  presumption  of  law  is  the  oth-  I 
er  way.  It  is  the  same  at  all  times  and  un-  ( 
der  all  circumstances;  hence  the  law  declares  ; 
the  absence  of  benefits."  But,  if  the  pre-  ■ 
sumption  is  a  disputable  one,  the  evidence  on 
the  part  of  the  city  did  not  tend  to  show  any 
direct,  immediate,  and  certain  benefit  to  the 
track  and  right  of  way,  and  the  only  benefit 
indicated  by  the  testimony  was  clearly  re- 
mote and  contingent,  depending  upon  the  ex- 
penditure of  considerable  sums,  and  there 
was  nothing  to  show  that  it  would  be  judi- 
cious or  desirable  for  the  company  to  enter 
upon  the  work.  The  benefit  shown,  if  any, 
was  to  the  public  in  facilitating  consignees 
in  getting  heavy  freights  from  the  tracks, 
and  not  to  the  company.  Contrary  conclu- 
sions have  been  reached  in  Illinois  Cent.  R. 
Co.  V.  City  of  Decatur,  126  111.  92,  18  N.  E. 
315;  City  of  Muscatine  v.  Chicago,  R.  I.  &  P. 
Rj'.  Co.  (Iowa)  44  N.  W.  909;  Railroad  Co.  v. 
Connelly,  10  Ohio  St.  159;  City  of  Ludlow  v. 
Cincinnati  S.  R.  Co.,  "78  Ky.  3.58;  Appeal  of 
North  Beach  &  M.  R.  Co.,  32  Cal.  500.  But 
some  of  these  cases  proceed  upon  quite  gen- 
eral reasoning,  and  are  not  in  harmony  with 
our  previous  decisions.  The  result  is  that 
the  assessment  as  to  the  railroad  track  and 
necessai-y  right  of  way  was  without  author- 
ity of  law,  and  it  should  be  set  aside  as  to 
all  the  premises  except  that  portion  of  the 
easterly  part  of  the  strip  between  the  street 
and  tracks  and  necessary  right  of  way.  The 
fact  that  it  is  probable,  in  the  near  future, 
this  portion  of  the  strip  will  be  required  for 
railway  purposes  will  not  serve  to  protect  it 
against  the  assessment.  New  York,  N.  H.  & 
H.  R.  Co.  V.  City  of  New  Britain,  49  Conn.  40. 
As  to  this  part  of  the  strip  there  should  be  a 
new  trial.  The  judgment  of  the  circuit  court 
is  reversed,  and  the  cause  Is  remanded  for  a 
new  trial. 


C^c 


.7^f,  J:- 


v.  0.4'%^  • 


%'f 


^uf-e— <*-^  «*-<Ki^' 


OF  AGRICULTURAL  LAND. 


263 


TAYLOR  V.  CITY  OP  WAYERLY. 

(G3  N.  W.  347,  94  Iowa,  061.) 

Supreme  Court  of  Iowa.     May  22,   1S95. 

Appeal  from  district  court,  Bremer  county; 
P.  W.  I^urr,  Judj.'e. 

Plaintiff,  the  OAvuer  of  90  acres  of  land  sit- 
uated within  the  incorporated  limits  of  the 
defendant  city,  prosecutes  this  action  to  can- 
cel certain  taxes  levied  upon  said  lands  for 
general  incorporation  purposes  for  the  year 
1893.  and  to  restrain  the  collection  thereof. 
Jud?rment  was  entered  for  plaiutifi:  as  prayed. 
Defendant   appeals.     Affirmed. 

A.  M.  Potter  and  Gibson  &  Dawson,  for 
appellant     G.  W.  Ruddick,  for  appellee. 

GIVEN,  C.  J.  1.  The  groimds  upon  which 
plaintiff  claims  that  his  lauds  are  exempt 
from  taxation  for  jreneral  municipal  purposes 
other  than  for  road  tax  are  as  follows: 

"Par.  3.  That  said  lands  and  each  piece 
and  tract  thereof  is  occupied  and  used  in 
good  faith  by  the  owner  for  agricultural  pur- 
poses only. 

"Par.  4.  That  none  of  said  lands  have  been 
laid  out  or  platted  into  city  lots,  nor  is  it 
held  for  future  speculation  as  city  property 
or  for  platting  as  such. 

"Par.  5.  That  none  of  it  adjoins  any  part 
of  the  platted  portion  of  said  city,  nor  does 
any  of  it  lie  so  near  to  the  platted  part  of 
the  city  that  the  corporate  authorities  cannot 
open  and  improve  its  streets  and  alleys  and 
extend  to  the  inhabitants  of  the  city  the 
usual  police  regulations  and  advantages 
without  incidentally  benefiting  the  proprie- 
tors in  personal  privileges  and  accommoda- 
tions or  the  enhancement  of  the  value  of  any 
part  thereof. 

"Par.  6.  That  none  of  the  land  derives  any 
benefit  from  the  water  works  or  the  street 
lighting  or  the  police  regulations  of  said  city, 
or  any  special  advantages  from  the  work 
done  on  streets  of  the  citj',  and  none  of  the 
lands  are  needed  for  the  extension  of  the 
streets  or  alleys  of  said  city." 

The  rule  in  such  cases  is  stated  in  Fulton 
V.  City  of  Davenport,  17  low^a,  405,  as  fol- 
lows: '  "But  the  rule  which  we  would  deduce 
on  this  subject,  and  under  which  a  large  ma- 
jority of  cases  might,  as  it  seems  to  us,  be 
deterniiued.  is  this:  When  the  proprietors 
of  undedlca'od  town  property,  being  locally 
within  the  corporate  limits,  hold  such  close 
proximity  to  the  settled  and  improved  parts 
of  the  town  that  the  corporate  authorities 
cannot  open  and  improve  its  streets  and  al- 
leys, and  extend  to  the  inhabitants  thereof 
its  usual  police  regulations  and  advantages, 
without  incidentally  benefiting  such  proprie- 
tors in  their  personal  privileges  and  accom- 
modations, or  in  the  enhancement  of  their 
property,  then  the  power  to  tax  the  same 
arises;  but  in  its  exercise  great  care  and 
circumspection  should  be  observed,  lest  per- 
chance injustice  and  oppression  may  ensue." 


In  Durant  v.  Kauffman,  34  Iowa,   194,  it  is 
said:     "The  more  fact  that  lands  are  includ- 
ed within  the  limits  of  a  municipal  corpora- 
tion   does    not    authorize   their   taxation    for 
general  city  purposes.     Under  ceilain  condi- 
tions, they  are  exempt  therefrom.    These  con- 
ditions are  such  that  the  property  proposed  [ 
to   be   taxed   derives   no   benefit   from  being 
within  the  city  limits.     This  is  the  rule  rec- 1 
ognized  by  the  various  decisions  of  this  court ! 
upon  this  subject,"— citing  cases."^ 

2.  We  think  the  evidence  fully  establishes 
each  of  the  allegations  made  by  plaintiff 
quoted  above.  The  laud  has  always  been 
occupied  and  used  for  agricultural  purposes 
only,  except  that  for  a  time  the  dwelling 
house,  outbuildings,  and  ground  used  there- 
with were  rented  for  residence  purposes  to 
one  who  w'as  not  engaged  in  farming  the 
land.  The  land  is  not  adjoining  the  platted 
portion  of  the  defendant  city,  but  is  remote 
therefrom,  with  other  unplatted  farm  lands 
lying  between.  None  of  this  land  has  ever 
been  laid  out  or  platted  into  city  lots,  nor 
does  it  appear  to  have  been  held  for  future 
speculation  as  city  property.  There  is  no 
street  or  alley  extending  to  these  lauds,  ex- 
cept a  public  highway,  running  along  the 
west  line  thereof.  The  nearest  street,  alley, 
or  sidewalk  is  200  rods  distant  from  said 
land,  the  nearest  hydi-ant  250  rods,  the  near- 
est city  lamp  250  rods,  and  the  nearest  water 
supply  for  extinguishing  fire  is  one  mile  dis- 
tant, and  the  property  is  outside  of  the  reach 
of  the  city's  fire  protection.  It  is  argued  on 
behalf  of  appellant  that  the  property  was 
not  being  used  exclusively  for  agricultural 
purposes,  that  it  was  at  least  mcideutally 
benefited  by  the  police  and  fire  protection 
afforded  by  the  citj',  and  by  the  privileges  of 
the  citj'  library.  We  do  not  think  that  the 
mere  fact  that  the  house  was  separately  rent- 
ed from  the  lands  for  a  time  made  the  use 
other  than  it  theretofore  had  been,  namely, 
for  agricultural  pui-poses.  It  is  quite  evident 
that  this  remote  place  neither  needed  nor 
received  any  protection  from  the  very  lim- 
ited police  force  of  the  defendant  city,  and, 
as  we  have  said,  the  property  was  entirely 
out  of  reach  of  any  of  the  appliances  of  the 
city  for  extinguisliing  fires.  AVhile  it  is  true 
the  occupants  of  this  property  might  enjoy 
the  privileges  of  the  city  Hbrary,  it  does  not 
appear  that  those  privileges  were  limited  to 
i-esidents  within  the  city  limits.  The  fact  is 
that  this  land,  remote  as  it  is,  is  not  avail- 
able as  city  property  for  either  residence  or 
business  purposes,  uuder  the  present  demands 
of  the  defendant  city.  It  does  not  adjoin 
the  platted  portion  of  the  city,  is  not  needed 
for  sti'cets  or  alleys,  and  derives  no  benefit 
whatever  from  taxes  expended  for  city  pur- 
poses other  than  the  road  tax  which  goes  to 
keep  in  repair  the  highway  by  which  the 
city  is  reached.  We  think  the  case  is  clear- 
ly within  the  rule  as  we  have  quoted  it 
above,  and  that  tlie  judgment  of  the  district 
court  should  bo  allirmed. 


264 


STREETS   AND    BRIDGES. 


CITY   OP   LAWREXCEBURGH   v.   WES- 

LER. 

(37  N.  E.  956,  10  Ind.  App.  153.) 

Appellate  Court  of  Indiana.     May  29,  ISM. 

Appeal  from  circuit  coiu't,  Switzerland 
county;  A.  C.  Downey,  Judse. 

Action  by  Frederick  Wesler  against  the 
city  of  Lawrencebui-gh.  There  was  a  judg- 
ment for  plaintiff,  and  defendant  appeals. 
Reversed. 

Warren  N.  Houck  and  John  K.  Thompson, 
for  appellant  Johnston  &  Shutts,  for  ap- 
pellee. 

REIXHARD,  J.  The  appellee  is  the  own- 
er of  lots  5,  6,  7,  and  S  in  the  city  of  Law- 
renceburgh, fronting  on  ornear  the  Ohio  river, 
on  which  he  conducted  the  business  of  a 
coal  dealer,  receiving  his  supplies  from  bar- 
ges lauding  in  front  of  his  lots  on  said  river, 
and  selling  and  delivering  at  retail  to  his 
customers  in  the  city.  He  brought  this  ac- 
tion against  the  appellant  in  the  Dearborn 
circuit  coiu-t  to  recover  damages  for  an  al- 
leged taking  for  levee  purposes  of  portions 
of  said  lots,  and  for  consequential  damages 
to  the  remainder  thereof  and  to  his  business 
connected  therewith.  The  venue  of  the  cause 
was  changed  to  the  court  below,  where,  upon 
issues  joined  anu  a  ti-ial  by  jury,  a  verdict 
was  retiu-ned  for  the  appellee  in  the  sum  of 
$1,050,  for  which  amount  the  coui't  rendered 
judgment.  Among  other  errors  assigned  and 
discussed  is  the  alleged  error  of  overrul- 
ing the  appellant's  motion  for  a  new  trial,  in 
which  motion  the  appellant  has  assigned  as 
causes  therefor  the  giving  of  certain  insti'uc- 
tions  and  the  refusal  to  give  others.  In  or- 
der to  see  the  applicability  of  the  instruc- 
tions given  to  the  facts  in  the  case,  it  wiU 
be  well  to  notice  some  of  the  evidence  intro- 
diiced  upon  the  subject  to  which  they  relate. 
The  appellee,  to  establish  his  title  to  the 
property  alleged  to  have  been  damaged,  in- 
troduced in  evidence  certain  deeds  to  lots 
numbered  5,  6,  7,  and  8,  and  thereby  proved 
the  ownership  and  possession  of  parts  of 
such  lots  in  himself  and  gi-autors  since  1SG9, 
and  other  parts  since  1880.  These  lots  are 
situated  in  the  south  part  of  the  city  of 
Lawrenceburgh,  and  run  south  from  New 
street  to  a  strip  of  ground  fronting  on  the 
Ohio  river.  The  appellee  also  introduced 
certain  deeds  and  other  evidence  of  title  and 
possession  of  the  strip  of  ground  lying  in 
front  of  lots  5,  6,  7,  8,  9,  10,  11,  and  12,  and 
between  such  lots  and  the  Ohio  river,  since 
the  year  1870,  and  more  than  20  years  be- 
fore the  beginning  of  the  present  action.  It 
will  be  seen,  therefore,  that  tne  appellee 
claimed  the  title  to  all  the  property  lying 
south  of  New  street  to  the  Ohio  river,  be- 
tween the  east  and  west  boundaries  of  his 
lots  numln'red  as  above,  and  all  the  land 
south  of  lots  9,  10.  11,  and  12,  as  far  as  said 
river.  The  appellant  did  not  dispute  the  ap- 
pellee's title  to  lots  5,  6,  7,  and  8,  as  claimed 
by  appellee,  but  denied  that  appi'llee  owned 
any  property  south  of  any  of  said  lots  which 


gave  him  a  right  of  action  against  the  city 
for  the  taking  thereof.  It  was  the  conten- 
tion of  the  appellant  that  aU  the  gi'ound 
south  of  appellee's  lots  was  occupied  and 
used  by  the  city  for  a  street  and  a  common; 
that  said  sti-eet  running  east  and  west  along 
the  soiithorn  boundary  of  appellee's  lots  and 
the  alleged  common  south  of  said  street, 
and  next  to  the  river,  had  been  dedicated  to 
the  public  as  such  by  one  Samuel  C.  Yance 
in  the  year  1812,  and  had  been  accepted 
and  used  as  such  since  that  time.  The  al- 
leged wrongful  act  of  the  appellant  by  which 
the  appellee  claims  to  have  been  damaged 
was  the  construction  of  a  certain  embank- 
ment across  the  appellee's  lots  east  and  west, 
at  points  north  of  said  alleged  Front  street, 
and  north  also  of  the  appellee's  coal  j'ard. 
ofiice,  scales,  and  elevator  frame.  East  of 
appellee's  lots,  and  forming  the  east  lino 
thereof,  is  Vine  street;  running  north  from 
the  river  and  west  of  said  lots,  and  forming 
the  west  line  thereof,  is  Mary  street,  running 
in  the  same  direction.  These  streets,  it  is 
asserted  by  the  appellee,  fm-nished  him  an 
outlet  for  the  delivery  of  his  coal  to  his  cus- 
tomers in  the  city  of  Lawrenceburgh,  and  that, 
by  reason  of  the  embankment  constructed 
as  above  mentioned,  the  egi'ess  from  and 
ingress  to  his  coal  yard  and  business  by  way 
of  said  streets  and  otherwise  has  been  en- 
tirely cut  off  and  destroyed,  and  the  said 
property  and  business  rendered  valueless. 
The  appellant  Insists,  however,  that  the  ap- 
pellee still  has  a  sufficient  outlet  from  and 
inlet  to  his  plant,  over  at  least  one  of  said 
streets,  and  that  his  property  has  conse- 
quently sustained  but  little,  if  any,  deterio- 
ration in  value.  It  is  the  further  claim  of 
the  city  that  the  appellee's  elevator  frame, 
the  loss  of  which  the  jmy  Avere  asked  to 
consider  as  an  item  of  damage,  was  situated 
in  Avhole  or  in  part  upon  the  strip  of  groimd 
over  which  Front  sti'eet  ran  and  the  corner 
of  an  alley  between  two  of  appellee's  lots, 
where  said  alley  crosses  said  Front  street. 
It  was  and  is  the  contention  of  appellant 
that  if  the  appellee's  elevator  frame  was  in 
fact  located  on  said  street  and  alley,  in  whole 
or  in  part,  no  damage  could  be  recovered  by 
the  appellee  for  that  portion  of  the  struc- 
tm-e  which  stood  on  said  street  and  alley. 
This  position  is  not  disiiuted  bj-  the  appellee, 
his  only  contention  in  connection  with  this 
point  being  that  there  was  neither  street  nor 
alley  at  the  place  upon  which  the  elevator 
was  being  placed,  but  that  said  frame  stood 
wholly  upon  his  property.  To  sustain  its 
claim  as  to  the  existence  of  Front  street  and 
the  common,  the  appellant  introduced  in 
evidence  a  paper  pmportiug  to  be  a  certified 
copy  of  a  plat  made  by  one  Samuel  C.  Vance 
in  the  year  1812,  and  recorded  long  before 
the  appellee  claims  to  have  been  the  owner 
of  any  of  the  property  in  controversy.  On 
this  plat  a  strip  of  ground  south  of  appellee's 
lots,  and  i-unning  cast  and  west,  is  laid  off, 
and  designated  as  "Front  Street,"  and  all 
the  ground  .south  of  said  street,  and  between 
it  and  the  Ohio  river,  is  laid  off,  and  desig- 


FAILURE  TO  USE  STREET  NOT  AN  ABANDONMENT. 


265 


nated  as  "Common."  There  was  no  evidence 
that  Samuel  C.  Vance  was  then  or  at  any 
time  before  tlie  allej,'ed  malcing  of  said  plal 
the  owner  of  said  land,  or  tliat  he  was  in  pos- 
session of  the  same  under  claim  of  title.  It 
is  proper  to  note  here,  however,  that  one  of 
the  deeds  of  the  appellee  under  which  he 
claims  title,  and  which  is  dated  May  4,  1870, 
purports  to  have  been  executed  b^-  Samuel  C. 
Vance  and  others,  but  whether  this  jirantor 
is  the  same  Samuel  C.  A'auce  who  executed 
said  alle,L,'ed  plat  is  not  made  to  appear. 
The  appellant  also  introduced  parol  testi- 
mony teudins  to  prove  the  existence  of  the 
common,  and  that  P^'rout  street  had  been 
used  and  traveled  by  the  public  both  before 
and  since  the  appellee  came  into  possession. 
This  testimony  was  stoutly  controverted  by 
a  number  of  appellee's  witnesses,  who  tes- 
tified that  at  no  time  within  their  recollec- 
tion, which  extended  as  far  back  as  that  of 
the  appellant's  witnesses,  had  they  ever 
heard  or  seen  any  indication  of  any  such 
sUtet  or  common.  The  appellee  also  con- 
tends, as  a  result  of  the  evidence,  that,  if 
Front  street  or  the  alleged  common  ever  had 
an  existence  as  claimed  by  appellant,  they 
had  long  since  been  washed  into  the  river, 
and  that  the  banks  of  the  latter  now  extend 
as  far  north  as  the  south  line  of  his  lots,  it 
must  be  confessed  that  as  the  depth  of  the 
appellee's  lots  are  not  given  in  the  deed,  and 
there  is  no  satisfactory  evidence  as  to  the 
same,  it  is  a  matter  of  much  difficulty  to  as- 
certain the  exact  truth  as  to  this  contention. 
The  following  diagram  will  serve  to  illustrate 
the  location  of  the  premises  over  which  the 
dispute  arises,  and  the  situation  south  of 
the  lots  as  contended  by  the  appellant: 


u 


8. 


JV. 


J  L 


UZ'iY    gr^ZLT 


7\LIZC^ID  COMMOAI 


OHIO 


^IVEJ^ 


Having  stated  this  much  of  the  evidence 
and  the  matters  in  conti'oversy,  we  proceed 
to  determine  the  correctness  of  the  instruc- 
tions complained  of.  Instruction  No.  5  is  as 
follows:  "(5)  AlUiough  a  certified  copy  of  a 
copy  of  the  second  or  substituted  plat  of  the 
city  of  Lawrenceburgh  was  admitted  in  evi- 
dence, I  think  that  it  is  not  sutticieut  of  itself 
to  show  a  dedication  of  the  strip  of  land 
next  to  the  levee  to  the  city,  the  public,  or 
to  any  person.  It  is  not  shown  by  any  evi- 
dence that  the  proprietor,  whosoever  he  may 
have  been,  was  the  owner  of  that  part  of  the 
land,  without  which  evidence  as  against  the 
plaintiff  there  is  no  dedication  of  such  strips 
of  groimd."'  Assuming  that  the  paper  was  suf- 
ficiently authenticated  as  a  certified  copy  of 
the  record  of  the  original  plat,  the  question 
raised  bj-  the  insti-uction  is  whether  such  plat 
constitutes  prima  facie  evidence  of  a  dedica- 
tion, in  the  absence  of  some  testimony  of 
ownership  in  the  alleged  proprietor  or  donor. 
The  appellee,  as  we  have  seen,  had  intro- 
duced evidence  tending  to  show  title  and  pos- 
session in  himself  and  gi-antors  for  more 
than  20  years.  To  overcome  this  proof,  it 
could  have  been  proper  only  to  show  an  older 
or  better  title  in  the  appoUant.  It  is  not 
disputed  that  proof  of  a  dedication  prior  to 
the  appellee's  title  would  have  been  proper, 
but  the  infli-mity  of  such  proof  here  consists 
in  the  failure  to  connect  the  alleged  donor 
with  the  dedication  as  the  owner  of  the  prop- 
erty at  that  time.  It  is  true  tliat  there  was 
some  evidence  which  tended  to  show  that 
the  ground  had  been  used  by  the  public  for 
a  street  and  common,  but  this  would  not  sup- 
ply the  requisite  evidence  of  ownership  in 
the  donor  if  the  plat  alone  was  to  furnish 
the  evidence  of  appellant's  title,  which  is  the 
theory  of  the  instruction.  While  a  dedica- 
tion may  be  established  by  user  alone,  in  that 
case  the  dedication  would  have  no  connec- 
tion with  any  plat,  and  may  be  said  to  be 
implied  dedication,  which  is  a  different  thing 
from  one  expressly  made  by  means  of  a  plat 
or  other  conveyance.  In  the  case  of  an  im- 
plied detlication,  established  by  evidence  of 
user  alone,  the  plat  cannot  be  considered  as 
the  basis  of  such  dedication.  For  these  rea- 
sons, we  think  the  court  correctly  instructed 
the  juiy  that  such  plat  alone  was  not  suffi- 
cient to  establish  the  existence  of  the  street 
or  common.  The  appellant  relies  upon  the 
case  of  Town  of  Fowler  v.  Linquist  (Ind. 
Sup.)  37  N.  E.  133  (decided  by  the  supreme 
court  at  a  recent  sitting),  as  an  authority  to 
support  its  position  that  the  plat  introduced 
was  prima  facie  evidence  of  a  dedication. 
That  was  an  action  against  the  town  for 
damnges  for  a  personal  injury  caused  by  an 
obstruction  in  a  street  To  establish  the  ex- 
istence of  the  street  a  plat  was  introducerl 
purporting  to  contain  a  dedication  of  the 
gi-ound  for  a  street.  There  was  evidence 
showing  that  the  sti-eet  had  been  used  as 
such  continuousl.v  ever  since  the  making  of 
the  plat,  with  the  exception  of  a  short  time. 
The  court  held  that,  as  between  the  parties 


266 


STREETS    AND    BRIDGES. 


to  that  action,  the  plat  was  prima  facie  eri- 
dence  of  owBorship  in  the  donor,  and  of  his 
intention   to  so   donate  the   ground-     There 
was  no  dispute  of  the  ownerstup  of  the  prop-    j 
erty  when  platted,  and  the  question  of  title  j 
was  at  most  but  a  very  remote  one.     The  use 
of  the  street  by  the  public  alone  might  be 
suflacient  to  raise  a  presumption  of  a  dedica- 
tion, so  that  the  municipal  authorities  might 
be   compelled    afterwards    to    maintain    the 
street  as  such.     In  that  case,  there  was  no 
controversy    between   the    plaintiff    and    de- 
fendant as  to  which  of  them  was  the  owner, 
and  it  was  only  necessaiy  or  proper  to  show 
that  there  was  a  street  which  the  city  was 
bound  to  maintain.     In  the  case  before  us, 
ownership  was  of  the  essence  of  importance. 
It  was  asserted  by  the  appellee  and  denied 
by   the   appellant.     To   defeat   sucli   owner- 
ship after  the  same  was  once  established,  it 
devolved  upon  the  appellant  to  show  that  it, 
or  some  person  other  than  the  appellee,  was 
the  owner  at  the  time  of  the   injm-y  com- 
plained of.     This  it  had  a  right  to  do  by  evi- 
dence of  a  dedication   of  the   property    by 
some  rightful  owner  prior  to  the  time   the 
appellee  had  acquired  title.     But  it  was  re- 
quired to  show  that  the  dedication  was  by 
the  owner,  and  proof  of  dedication  by  any 
person  who  styled  himself   "proprietor"   on 
the   plat  is   not  sufficient.    Had   an  accept- 
ance and   uninterrupted  use   by   the   public 
been  established,  the  case  might  be  different. 
We  gi-ant  that  if  Samuel  C.  Vance,  or  any 
one  claiming  under  him,  were  asserting  title 
here,  instead  of  the  appellee,  such  a  claim 
could  not  be  sustained,  for  as  to  any  such 
person  the  city  could  successfully  rely  upon 
an  estoppel.    But  here  we  have  not  a  scin- 
tilla of  proof  that  Vance  was  then  the  owner 
or  (save  that  he  signed  the  plat  as  proprietor) 
that  he  ever  asserted  any  title.    Dedication 
is  like  any  other  source  of  title.     It  must  be 
shown  to  come  from  or  through  the  owner 
of  the  property.    As  well  might  the  appel- 
lant rely  upon  a  deed  from  some  person  not 
now   claiming  the   ground   in   dispute,    and 
who  is  not  shown  to  have  been  the  owner 
at  any  time,  as  to  claim  title  by  dedication 
from  some  one  not  shown  to  have  owned  the 
property.     If  the  owner  is  proved  to   have 
platted    the    ground    on    which    the   alleged 
street  is  situate,  or  has  done  other  acts  show- 
ing a  dedication,  such  as  selling  lots  with 
reference  to  the  plat  on  which  the  street  is 
laid  out,  or  by  accepting  a  plat  made  to  show 
such  street,  it  will  be  sullicient  evidence  of 
dedication.     Elliott,  Roads  &  S.  §  129.     But 
the  mere  showing  that  some  one,  not  proved 
to  be  the   owner,   had   placed   on   record   a 
map  or  plat  in  which  a  street  or  highway 
is  laid  off,  will  raise  no  presumption  against 
a  party  in  possession  who  has  proved  title 
in  himself,  coupled  with  possession  for  more 
than  20  years.     It  is  our  opinion,  therefore, 
that  the  court  committed  no  en-or  in  giving 
this  insti-uction. 
The  sixth  and  seventh  instructions  given 


by  the  court  at  the  request  of  the  appellee 
read  as  follows:     "(6)  The  owner  of  a  town 
or  city  lot  abutting  upon  a  public  street  or 
alley  is  also  the  owner  of  the  land  opposite 
his  lot  to  the  center  of  such  street  or  alley, 
subject  only  to  the  right  of  the  public  to  the 
use  of  such  street  or  alley  as  and  for  a  pub- 
lic highway.     A  street  or  a  part  of  a  street 
may  be  abandoned  by  a  town  or  city,  with 
the  acquiescence  of  the  citizens  thereof,  for 
such  length  of  time  as  to  cease  to  be  a  public 
street,  and,  when  it  thus  ceases  to  be  a  pub- 
lie  sti-eet,  the  owner  of  the  abutting  lot  be- 
comes the  absolute  owner  of  the  street  to 
the  center.     If,  in  this  case,  the  plaintiff  is 
and  was  at  the  commencement  of  this  ac- 
tion the  owner  of  lot  No.  6,  mentioned  in  his 
complaint,  and  said  lot  abutted  upon  Front 
street,  or  what  was  once  Front  street,  and 
that  part  of  Front  street  abutting  said  lot 
had  been  abandoned  so  that  the  same  had 
ceased  to  be  a  public  street,  then  the  plain- 
tiff had  a  right  to  erect  his  elevator  as  far 
out  from  the  line  of  said  lot  as  xhe  center  of 
said   street.    (7)  Whether   said   Front   street 
had  been  abandoned  so  as  to  cease  to  be  a 
public  street  is  a  question  of  fact  for  the 
jury  to  determine,  and  in  determining  thai 
question  the  jury  may  consider  the  fact  that 
said  street  has  not  been   worked  and  kept 
in  repair  by  the  public,  if  that  fact  is  prov- 
en;   whether  or  not  it  is  now  so  marked  up- 
on the  sm-face  of  the  ground  as  to  be  recog- 
nized as  a  public  street;    whether  there  are 
indications  of  its  having  been  used;  wheth- 
er in  fact  it  is  used  by  the  public  generally; 
its    present    beginning    and    termination;    if 
there  is  any  evidence  upon  these  points,  to- 
gether with  all  other  evidence  bearing  upon 
that  question.      The  mere  fact    that    such 
street   may   be   designated   upon  a   map  or 
plat  of  the  city  is  not  of  itself  conclusive 
evidence  of  the  existence  of  such  street  at 
this    time."      These   instructions  are  vigor 
ously    assailed    by   the   appellant's   counsel, 
and  as  earnestly  and  ably  defended  by  coun- 
sel for  the  appellee.     The  importance  of  the 
questions  involved,  no  less  than  our  high  re- 
gard  for   the   opinions   of  the   learned   and 
usually  accurate  judge  who  presided  at  the 
trial,  have  prompted  us  to  give  such  ques- 
tion   much    careful    consideration;    and    our 
examination    of    the    authorities    has    con- 
vinced  us   that  the   doctrine   enunciated   in 
the    instructions    cannot   be    upheld.      That 
which  we  regard  as  the  fundamental  error 
underlying  the  instructions   is  the  assump- 
tion that  proof  of  a  failure  on  the  part  of 
the  authorities  to  keep  a  street  in  repairs, 
or  of  a  mere  nonuser  of  a  portion  or  all  of 
such  street  by  the  public  for  a  considerable 
time,  will  authorize  a  jury  to  infer  an  aban- 
donment.   "\^'hile  there  are  in  the  books  some 
general   expressions   to   the   effect   that   an 
abandonment  of  a  highway  may  be  proved 
by  facts  showing  a  nonuser  for  a  long  time, 
such    statements   must    be    considered    with 
certain  qualifications  as  to  conditions  which 


FAILURE  TO  USE  STREET  NOT  AN  ABANDONMENT. 


267 


have  no  existence  here.  That  there  may  be 
instances  in  which,  by  the  acqulesccuce  of 
the  pubhc  along  the  line  of  a  highway  in  its 
occupancy  and  the  erection  of  improvements 
thereon,  an  estoppel  may  be  created,  must 
be  conceded.  Hamilton  v.  State,  106  lud. 
3G1,  7  N.  E.  9;  Railroad  Co.  v.  Shaukliu,  98 
Ind.  573.  And  there  is  likewise  good  au- 
thority in  support  of  the  doctrine  that  a  pub- 
lic highway,  other  than  a  street  or  alloy,  in 
a  city  or  town,  which  has  been  created  by 
implied  dedication,  may  be  abandoned  by 
the  public,  and  the  same  rule  may  be  applied 
,:j  a  public  square,  and  perhaps  a  common, 
in  a  city  or  town.  Town  of  Freedom  v.  Nor- 
rls,  1128  Ind.  377,  27  N.  E.  8G9.  liut  there  is 
no  element  of  estoppel  in  the  present  case, 
nor  docs  the  doctrine  of  abandonment  of 
ordinary  easements  apply  to  streets  or  alleys. 
Certainly  the  mere  occupancy  of  a  street  by 
an  individual  without  objection  by  the  mu- 
nicipal authorities  creates  no  estoppel.  In 
the  case  at  bar,  the  only  building  or  struc- 
ture or  improvement  of  any  kind  erected  up- 
on what  is  claimed  to  be  Front  street,  and 
the  alley  crossing  it,  was  the  appellee's  ele- 
vator, and  even  this,  according  to  the  ap- 
pellee's own  testimony,  was  placed  there  as 
i-ecently  as  the  year  1SS9,  and  is  not  yet 
completed,  and  hence,  even  if  the  building 
of  the  elevator  could  be  construed  as  a  claim 
under  adverse  possession,  it  would  not  be 
barred  by  the  statute  of  limitations.  The 
streets  of  a  city  or  town  are  public  high- 
ways, and,  under  our  system  of  govern- 
ment, they  belong  to  the  people  of  the  mu- 
nicipality.   Such  streets  may  be  established 

^  by  grant  or  dedication,  express  or  implied. 
"Once  a  highway,  always  a  highway,"  was 
a  maxim  of  the  common  law,  and  it  applies 
with  peculiar  force  to  the  streets  of  cities 
and  towns.    The  control  of  such  streets,  and 

/  their  improvement  and  maintenance,  are 
among  the  governmental  functions  of  the 
municipal  officers.  These  cannot,  by  their 
failure  to  discharge  the  duties  devolving  up. 
on  them,  deprive  the  public,  whose  serv- 
ants and  agents  they  are,  of  its  right  to  the 
use  of  such  streets,  nor  will  the  mere  fail- 
ure to  use  the  same  by  the  public  be  treated 
as  abandonment,  even  though  such  nonuser 
extend  over  the  entire  period  covered  by  the 
statute  of  limitations  applicable  in  cases  of 


adverse  possession.    AVolfe  v.  Town  of  Sul-  / 
livan,  133  lud.  331,  32  N.  E.  1017;    Cheek  v. 
City  of  Aurora,   92  Ind.   107;    Sims  v.   City 
of  Frankfort,  79  Ind.  44G;    Brooks  v.  Riding, 
4G  Ind.  15. 

It  is  not  altogether  certain  that  the  plat 
inti'oduced  in  evidence,  when  taken  in  con- 
nection   with    the    testimony    showing    that 
the    street   had   been    used   as    such,    is    en- 
tirely without  probative  force.     Taken  by  it- 
self, and  without  evidence  of  ownership  by 
the  donor,  it  is  of  no  value  as  tending  to  estab- 
lish  a  dedication.      But,    when    considered 
with  the  proof  of  user  and  the  circumstance 
that  Samuel  C.  Vance  was  a  grantor  througli 
whom  the  appellee  claims  title,  the  jury  was 
not  without  some  evidence  of  express  dedi- 
cation and  acceptance.     The  jury   had  tlie  / 
right  to  determine  from  the  evidence  wheth- 
er  there   had   been    a   dedication   of   Front  f 
street,   either    expressly   or  by   implication, 
and,  if  they  found  that  it  had  not  been  so  j 
dedicated  or  accepted,  the  ground  belonged 
to  the  appellee,  and  he  would  be  entitled  to 
recover  his  damages  on  account  of  the  ele-    . 
vator,  as  well  as  the  other  property.     But 
if  they  found  that  Front  street  and  the  alley   | 
crossing    the    same    had    a   real    existence 
among  the  streets  and  alleys  of  the  city  of    | 
Lawronceburgh,    then    whatever   rights    the    . 
appellee  had  in  the  soil  of  such  street  were   | 
subject  to  the  easement  of  the  public,  and 
he  had  no  right  to  erect  his  elevator  thereon,   | 
and  can  recover  no  damages  for  being  de-  . 
prived  of  the  use  of  the  same  in  the  place  / 
where  it  is  erected.    There  was,  in  our  opin- 
ion,   no   evidence   which  would  justify   the 
jury   in   deciding  that  there   had   been    an 
abandonment   of   Front   street,   provided   it 
ever  had  an  existence.    There  was  but  on* 
way  in  which  such  street  could  have  been 
lawfully  abandoned  in  our  view,  and  that 
was  by  a  proceeding  to  vacate  the  same. 

There  being  no  special  verdict  in  this  case, 
nor  answers  to  interrogatories,  we  are  un- 
able to  determine  how  much,  if  any,  allow- 
ance the  jury  made  to  the  appellee  on  ac- 
count of  the  elevator,  and  hence  the  only 
course  that  is  left  us  to  remedy  the  error 
committed  by  the  giving  of  the  instruction 
is  to  direct  a  new  trial.  Other  errors  assign- 
ed and  discussed  need  not  now  be  consid- 
ered.    Judgment  reversed. 


268 


STREETS    ANT)    BRIDGES. 


CITY  OF  MT.  CARMEL  v.  SHAW  et  aL 

(39  N.  E.  5S4.  155  111.  37.) 
Supreme  Court  of  Illinois.     Jan.   14,   1895. 

Appeal  from  appellate  court,  Fourth  dis- 
trict. 

Bill  by  Maria  L.  Shaw  and  James  I.  Shaw 
against  the  city  of  ML  Carmel,  to  enjoin  the 
city  from  cutting  down  two  shade  trees. 
Complainants  obtained  a  decree,  which  was 
modified  by  the  appellate  court.  52  lU.  App. 
429.     Defendant  appeals.     Reversed. 

George  P.  Ramsey,  for  app-iUant  Mundy 
&  Organ,  for  appellees. 

BAKER,  J.  By  the  general  incorporation  act 
lunder  which  the  citj'  of  Mt  Carmel  is  organiz- 
ed, it  has  power  to  lay  out,  estabUsh,  open,  alter, 
widen,  extend,  gi"ade,  pave,  or  otherwise  im- 
prove its  streets  and  sidewalks,  and  vacate  the 
same.  It  may  do  anything  with  its  streets 
which  is  not  incompatible  with  the  end  for 
which  streets  are  established.  Roberts  v.  City 
of  Chicago,  26  111.  24Q;  Murphy  v.  City  of  Chi- 
cago, 29  m.  279.  And  where  the  municipal 
/  authoi-ities  are  acting  within  then-  well-recog- 
nized i)owers,  or  are  exercising  a  discretion- 
ary power,  a  com-t  of  equity  has  no  jm'isdic- 
tion  to  interfere,  unless  the  power  or  discre- 
tion is  being  manifestly  abused,  to  the  oppres- 
sion of  the  citizen.  Brush  v.  City  of  Carbon- 
dale,  78  HI.  74.  The  rights  of  the  parties  to 
this  controversy  seem  to  depend  largely  upon 
the  question  whether  the  city,  under  its 
power  to  vacate  streets,  has  power  to  vacate 
only  a  portion  of  a  street.  Under  the  familiar 
rule  that  the  whole  of  a  thing  includes  all 
of  its  parts,  it  would  seem  that  it  has.  In 
Village  of  Hyde  Park  v.  Dunham,  So  lU.  569, 
this  coiu-t,  speaking  of  the  village  there  a 
party,  said:  "The  corporate  authorities  are 
vested  with  complete  control,  as  is  every 
other  municipal  corporation,  over  its  streets. 
They  may  conti-act  or  widen  them  whenever, 
in  their  opinion,  the  public  good  shall  so  re- 
quire. Property  owners  purchase  and  hold 
subject  to  these  powers,  and  they  have  no 
vested  right  to  deny  the  widening,  contract- 
ing, or  othei'wise  improving  any  street." 
From  the  decisions  in  City  of  Chicago  v. 
Union  Bldg.  Ass'n,  102  111.  379,  and  People  v. 
Village  of  Hyde  Park,  117  111.  462,  6  N.  E. 
33,  there  .s  a  plain  implication  that  a  munici- 
pal corporation  may  vacate  a  part  of  a  street, 
as  distinguished  from  the  vacation  of  an  en- 
tire street.  In  Meyer  v.  Village  of  Tewtopolis, 
131  111.  532,  23  N.  E.  651,  an  ordinance  of  the 
village,  vacating  a  certain  portion  of  a  street 
in  that  village,  was  held  valid.  In  Smith  v. 
McDowell,  148  lU.  51,  35  N.  E.  141,  the  ordi- 
nance was  not  held  invalid  on  the  ground  that 
only  a  portion  of  the  street  was  vacated.  It 
was  a  part  of  this  particular  case  that  the 
ordinance  assumed  to  vacate,  not  the  whole, 
but  a  portion  only,  of  the  street  there  involv- 
ed, but  the  gist  of  the  decision  was  that  the 


corporate  authorities  had  no  power  to  so  va- 
cate for  the  sole  benefit  and  use  of  a  private 
person.  The  vacation  of  an  entire  stx-eet, 
under  like  circumstances,  would  be  alike  ultra 
vires.  The  rule  then  laid  down  would  be 
applicable  to  the  case  of  a  whole  street,  as 
well  as  to  that  of  a  portion  of  it.  We  said: 
"The  municipal  corporation  holding  and  con- 
trolling its  streets  in  trust  for  the  use  of  the 
general  public,  without  power  of  converting 
them  to  any  other  use,  it  follows,  necessarily, 
that  the  right  to  'vacate  the  same'  is  to  be 
exercised  only  w'»:'n  the  municipal  authorities.. 
in  the  exercise  of  their  discretion,  determine 
the  street  is  no  longer  required  for  the  public 
use  or  convenience."  No  reason  is  perceived 
why  a  city  council  might  not,  under  some 
circumstances,  and  in  the  exercise  of  a  sound 
official  discretion,  conclude  that  a  portion  of 
a  street,  either  in  length  or  in  width,  was  not 
necessary  for  public  use  and  convenience,  and 
that  public  interests  would  be  subserved  by 
vacating  the  same,  and  thus  freeing  the  mu-  I 
nicipality  from  the  duty  and  bm*den  of  keep-  / 
ing  it  in  good  and  safe  condition  and  repair. ' 
This  case  is  wholly  different  from  Smith  v. 
McDowell,  supra.  It  conclusively  appears 
upon  the  face  of  the  ordinance,  as  we'l  as 
from  other  evidence  in  the  record,  that  the 
vacation  of  parts  of  the  public  streets  was 
for  entirely  legitimate  purposes,  and  in  fiu:- 
therance  of  what  the  city  council,  in  the  exer- 
cise of  the  discretion  vested  in  them  by  the 
statute,  deemed  a  wise  and  salutary  public 
policy.  The  streets  were  all  99  feet  wide, 
and  it  was  evidently  concluded  that  so  great 
a  width  of  streets  was  not  required  for  public 
use  and  convenience,  except  in  respect  to 
Market  street,— the  business  street  of  the 
city.  And  so  the  ordinance  was  passed,  and 
the  cost  of  paving  and  maintaining  a  useless 
width  of  public  highway  lifted  from  the  shoul- 
ders of  the  municipality  and  its  taxpayers,  v 
It  is  claimed  that  section  4  of  the  ordinance  ) 
is  void;  that  the  city  authorities  had  no  pow- 
er to  sell,  donate,  or  give  away  parts  of  the 
public  streets  that  they  held  in  trust.  It  is 
ordained  in  the  ordinance  "that  a  sti'ip  two 
feet  wide  next  to  the  property,  lands,  lot  or 
lots  abutting  on  said  streets,  shall  be  and  is 
hereby  vacated."  It  is  admitted  that  the 
original  plat  of  the  city  and  streets  was 
signed  by  the  attorney  in  fact  of  the  proprie- 
tors of  the  land,  and  that  this  makes  it  a 
coumion-law  dedication  of  the  sti'eets.  Gos- 
selin  V.  City  of  Chicago,  103  111.  623;  Earll  v. 
City  of  Chicago,  136  111.  277.  26  N.  E.  370; 
Thomson  v.  McCormick,  136  111.  135,  26  N.  E. 
373.  It  therefore  resulted,  when  the  strips 
two  feet  wide  were  vacated  by  the  city,  that 
they  became  parts  of  the  lots  adjoining  them, 
and  the  lot  lines  were  extended  two  feet. 
And  it  also  resulted  that,  by  operation  of 
law,  the  titles  of  the  owners  of  the  abutting 
lots  to  the  portions  of  the  strips  located  in 
front  of  their  respective  lots  became  abso- 
lute, and  freed  from  the  incumbrance  of  the 
easements  that  had  been  upon  them.     It  ful- 


DISCRETIO^STARY  POWERS  AS  TO  VACATION  OF  STREET. 


269 


loAN-s  that  the  couchuling  words  of  the  sec 
tion,  to  the  effect  that  the  strip  taken  from 
the  streets  was  donated  and  given  to  the  lot 
or  lots,  were  but  mere  suri)lusage. 
^  The  ordinance  of  ISUl   was  and  is  valid. 
And  when  the  city  council,  by  the  ordinance 
of  July  25,  1S92,  made  provision  for  the  con- 
struction of  a  brick  sidewalk  six  feet  in  width 
on  the  north  side  of  Sixth  street,  and  that  it 
should  be   made  and  constructed  along   the 
outside  line  of  said  street,  and  adjoining  the 
lot  or  lots  abutting  on  said  sti-eet,  the  line 
so  fixed  by  the  ordin:ince  applied  to,  and  was 
coincident  with,  the  lot  line  and  street  line 
as    fixed    by    the    prior    ordinance    of    IS'Jl. 
(  Shade  trees  in  the  public  streets  of  a  city 
!  are  the  property  of  the  municipality,  and  it 
I  has  complete  control   over  them.     Baker  v. 
"  Town   of   Normal,    81   111.    108.     There    was 
I    nothing  unlawful  in  the  conduct  of  the  city 
I    officials.     The  council  had  authority  to  order 
a  brick  sidewalk  six  feet  wide  to  be  built 
I    along  tlie  line  of  the  street,  and  adjoining  thc> 
'    lot  of  appellees.     It  is  to  be  presumed  that 
I    there  was  a  public  necessity  for  its  construc- 
y  tion.     At  all  events,  that  was  a  matter  that 
the    statute    submitted    to    their    discretion. 
The  two  large  trees  were  in  the  line  of  the 
/  sidewalk  ordered,  and  the  larger  part  of  their 
'   bodies    was   within   the   limits    upon    which 
the  sidewalk  was  located  by  the  ordinance. 


The  sidewalk  could  not  be  constructed  in  j 
conformity  with  the  ordinance  without  cut-  | 
ting  them  down,  and  removing  them.  If  lof  I.  . 
standing,  they  woiild  be  permanent  obstrue-  } 
tions.  We  do  not  think  that  the  proposed  ' 
action,  in  the  premises,  of  the  city  officials, 
can  justly  be  regarded  as  wanton,  or  as  so  ' 
unreasonable  and  oppressive  as  to  give  a 
court  of  chancery  jurisdiction  to  interfere. 
Brush  V.  City  of  Carbondale,  78  111.  74.  In 
fact,  it  seems  to  us  that  it  would  be  more 
unreasonable  to  destroy  the  symmetry  and 
impair  the  convenience  and  safety  of  the  side- 
walk, by  eitlier  leaving  obstructions  in  it  that 
are  two  feet  in  diameter,  or  by  turning  it  out 
on  the. south  side  of  the  trees,  six  or  seven 
feet  into  the  roadway  of  the  sti-eet,  or  by 
contracting  it  on  the  north  side  of  the  trees 
to  the  width  of  four  feet,  than  it  would  be 
to  cut  down  the  trees  that  do  not  belong  to 
appellees,  but  afford  shade  to  their  premises. 
In  our  opinion,  both  the  decree  of  tlie  circuit 
court,  and  that  decree  as  modified  by  the  ap- 
pellate court,  are  erroneous,  as  is  also  the 
judgment  of  affirmance.  The  judgment  and 
the  decrees  are  reversed;  and  the  cause  is  re- 
manded to  the  circuit  court,  with  directions 
to  dissolve  the  injunction  and  dismiss  the  bill 
of  complaint,  for  want  of  equity,  at  the  cost 
of  the  complainants  therein.  Reversed  and 
remanded. 


270 


STREETS    AND    BRIDGES. 


DRUMMOND    v.    CITY   OF  EAU    CLAIRE. 

(55  N.  W.  1028,  85  Wis.  556.) 

Supreme  Court  of  Wisconsin.     June  21.  1SD3. 

Appeal  from  circviit  court,  Eau  Claire  coun- 
ty; J.  K.  Parish,  Judge. 

Action  by  David  Drummond  against  ttie 
city  of  Eau  Claire.  Judgment  for  defendant. 
Plaintiff  appeals.    Reversed. 

Wickham  &  Farr,  for  appellant.  L.  A. 
Doolittle,  for  respondent. 

CASSODAY,  J.  The  defendant  seeks  to  justi- 
fy the  judgment  on  the  ground  that  the  claim 
filed  by  the  plaintiff  with  the  city  clerk  for  the 
action  of  the  common  council  was  for  damages 
by  reason  of  the  lawful  change  of  grade  in  front 
of  the  plaintiff's  premises,  whereas  the  com- 
plaint based  upon  such  claim,  served  and 
filed  after  the  cause  was  appealed  to  the 
circuit  court,  is  for  damages  by  reason  of 
the  unla-o-ful  change  of  such  grade;  and  in 
support  of  his  contention  he  relies  upon 
Smith  V.  City  of  Eau  Claire,  (Wis.)  53  N.  W. 
Rep.  744.  In  that  case  the  claim  filed  stated 
the  facts  in  detail,  and  clearly  showed  that 
the  damage  claimed  was  for  a  law^ful  change 
of  grade;  and  it  was  merely  held  that  the 
plaintiff  could  not,  on  appeal,  change  his 
cause  of  action  by  claiming  damage  for  an 
unlawful  change  of  grade.  In  the  case  at 
bar  the  claim  filed  was  general;  being, 
simply,  "For  damage  caused  by  change  of 
grade,  $1,500."  It  did  not  even  describe  the 
plaintiff's  premises.  But  it  does  not  appear 
that  the  plaintiff  had  any  other  premises  to 
be  affected  by  such  change  of  grade,  and  the 
common  council  acted  upon  it,  and  disal- 
lowed it,  without  regard  to  its  informahty; 
and  then,  in  the  stipulation  between  the  par- 
ties for  formal  pleadings,  such  filing,  disal- 
lowance, and  appeal  are  recited,  and  it  is 
therein  stated  that  the  plaintiff  claims  "dam- 
ages of  said  city  for  changing  the  grade  of 
Bridge  street,  a  certain  highway  of  said  city 
in  front  of  the  premises  of  said  plaintiff," 
therein  described.  The  complaint  filed  and 
served  in  pursuance  of  that  stipulation  w^as 
expressly  based  upon  that  claim,  and  the 
sufficiency  of  that  complaint  was  sustained 
on  demuiTcr  by  the  trial  court,  and  the  order 
sustaining  the  same  was  affirmed  by  this 
court.  79  Wis.  97,  48  N.  W.  Rep.  244.  Such 
being  the  state  of  the  record,  we  cannot  hold 
that  the  complaint  fails  to  state  a  cause  of 
action,  nor  that  the  claim  filed  was  insuffi- 
cient to  sustain  the  action. 

2.  It  seems  to  be  conceded  that  the  at- 
tempt to  re-establish  the  grade  of  the  street 
in  question  was  abortive,  and  that  the  rais- 
ing of  the  same  several  feet  in  front  of  the 
plaintiff's  premises  was  without  any  lawful 
authority.  This  being  so,  it  is  manifest  that 
the  plaintiff  is  entitled  to  recover  any  dam- 
ages sustained  by  reason  of  such  trespass  up- 
on, and  injury  to,  his  premises.    Crossett  v. 


City  of  Janesville,  28  Wis.  420:  Hamilton  v. 
City  of  Fond  du  Lac,  40  Wis.  47;  Dore  v. 
City  of  Milwaukee,  42  Wis.  lOS;  :Meinzer  v. 
City  of  Racine.  GS  Wis.  241,  32  N.  W.  Rop. 
139;  Id.,  70  Wis.  5G1,  36  N.  W.  Rep.  2G0;  Id., 
74  Wis.  166,  42  N.  W.  Rep.  230;  Addy  v.  City 
of  Janes viUe,  70  Wis.  401.  35  N.  W.  Rep.  931; 
Drummond  v.  City  of  Eau  Claire,  79  Wis. 
97,  48  N.  W.  Rep.  244.  The  important  ques- 
tion for  determination  is  the  measure  of  such 
damages.  In  Crossett  v.  City  of  Janesville, 
supra,  the  trial  court  chai'ged  the  jury  that 
the  plaintiff  was  entitled  to  recover  "for  all 
the  direct  and  proximate  damages  to  her 
premises,  caused  by  the  grading  in  question," 
and  "that  the  measure  of  the  plaintiff's  dam. 
ages  was  the  actual  depreciation  in  the  value 
of  her  lots  by  reason  of  the  grading  having 
been  done  at  the  time  and  in  the  manner  it 
was  done."  The  correctness  of  the  charge, 
however,  was  not  challenged  upon  such 
ground,  but  was  assumed  by  this  court.  The 
same  is  true  with  respect  to  Meinzer  v.  City 
of  Racine,  supra,  where  the  charge  was  sub- 
stantially the  same.  In  Addy  v.  City  of 
Janesville,  70  Wis.  401,  35  N.  W.  Rep.  931, 
it  was  held,  in  effect,  that,  "where  a  city,  by 
unlawfully  raising  a  street  above  the  estab- 
lished grade,  causes  surface  water  to  flow 
or  accumulate  upon  an  abutting  lot,  it  is  lia- 
ble to  the  lot  owner  for  the  injurj^  occa- 
sioned thereby;"  that,  imder  a  complaint  al- 
leging such  unla^v-ful  raising  of  the  street, 
it  was  competent  to  prove  "the  insufficiency 
of  a  culvert  by  which  such  water  might 
have  been  conducted  away"  from  the  plain- 
tiff's lots.  It  was  there  contended  that  the 
city  was  not  Uable  for  such  consequential 
damages  from  mere  surface  water  by  rea- 
son of  such  change  of  grade,  and  numerous 
cases  in  this  court  were  cited  in  support  of 
such  contention.  In  answer  to  such  conten- 
tion. Cole,  C.  J.,  speaking  for  the  court,  there 
said:  "These  cases  are  inapplicable  to  the 
present,  for  the  obvious  reason  that  here  the 
common  council  had  no  authority  to  change 
the  grade  without  taking  the  steps  prescribed 
by  the  charter  to  give  them  power  so  to  do." 
The  trial  court,  in  that  case,  charged  the 
jury  "that  the  city  had  shown  no  authority 
whatever  for  raising  the  grade,  and  if  such 
raising  of  the  grade,  -oithout  sufficient  cul- 
verts or  gutters  to  carry  off  the  waters  as 
rapidly  as  they  were  carried  off  before,  pro- 
duced injury  to  the  plaintiff,  the  raising 
was,  as  to  her,  unla%^'ful;  and  if  done  by  the 
city,  or  if  the  city  ratified  the  raising  of  the 
grade  after  it  was  done,  by  paying  for  the 
work,  the  city  was  hable  to  her  for  all  dam- 
ages which  natiirally  resulted  from  the  rais- 
ing of  the  gi'ade,  with  its  insufficient  gutters 
or  culverts  to  conduct  the  waters  as  rapidly 
as  they  flowed  off  before  the  grade  was 
raised."  An  exception  to  this  portion  of  the 
charge  was  there  overi-uled.  That  case  was 
cited  approviugly  by  Mr.  Justice  Orton  when 
the  case  at  bar  was  hereon  the  former  appeal; 
and  he  there  said,  in  effect,  that  as  the  grad- 


WHETS'  MUNICIPALITY  LIABLE  FOR  CHAXGE  OF  GRADE. 


'271 


ing  was  done  without  authority,  and  unlaw- 
fully, the  city  was  "liable  to  the  plaintiff 
for  such  damages  as  he  had  suftorod,  whicli 
were  caused  by  it"  79  Wis.  l(i-J.  48  N.  W. 
Rep.  244:.  Such  are  the  adjudications  of  this 
court  in  respect  to  the  measure  of  damages 
In  cases  where  the  regrade  was  done  with- 
out autliority  of  law.  On  the  other  hand, 
this  court  has,  in  effect,  frequently  held  that 
where  a  change  of  grade  in  a  street  is  made 
under  authority  of  law,  and  with  due  care,  the 
nmnicipality  is  not  liable  for  consequential 
injury  to  abutting  lots,  unless  made  so  by 
statute  or  the  constitution.  Smith  v.  Gity 
of  Eau  Claire,  78  Wis.  457,  47  N.  W.  Hep. 
8;50;  Wallich  v.  Manitowoc,  57  Wis.  9,  14  N. 
W.  Kep.  812;  Harrison  v.  Board,  51  Wis. 
6G2-665,  8  N.  W.  Rep.  731;  Tyson  v.  City 
of  Milwaukee,  50  Wis.  78,  5  N.  W.  Rep.  914; 
French  v.  City  of  Milwaukee,  49  Wis.  584, 
6  N.  W.  Rep.  244;  Stndler  v.  City  of  Mil- 
waukee, 34  Wis.  98;  StoweU  v.  City  of  Mil- 
waukee, 31  Wis.  523;  Church  v.  City  of  Mil- 
waiikee.  Id.  512.  In  the  case  at  bar  the 
trial  court,  in  charging  the  jury,  apparently 
followed  the  rule  of  law  laid  down  in  the 
case  last  cited.  The  provision  of  the  city 
charter  upon  which  that  case  was  based  was 
to  the  effect  that  all  damages,  costs,  and 
charges  arising  from  a  change  in  the  grade 
of  the  streets  therein  should  be  paid  by  the 
city  to  the  owner  of  any  lot  injured  there- 
by; and  it  was  "held  that  while  any  pecuUar 
or  special  benefit  conferred  upon  the  plain- 
tiff's lot,  not  common  to  other  lots  in  the 
neighborhood,  and  not  increasing  its  market 
value,  could  not  be  considered  by  the  jury 
in  fixing  the  damages,  yet  if  such  lot,  in  con- 
sequence of  the  changed  grade,  was  ap- 
preciated in  value  in  common  with  the  other 
property  in  that  locahty,  the  city  was  en- 
titled to  have  such  increase  of  value  de- 
ducted, in  the  estimation  of  damages."  The 
rule  of  law  stated  in  that  case  and  in  Stow- 


eU V.  Milwaukee,  supra,  as  explained  in  Ty- 
son V.  City  of  Milwaukee,  50  Wis.  85-89,  5 
N.   W.    Rep.   914,    is    only   applical)le   where 
such  regrade  is  under  lawfiU  autliority;  but 
has  no  application  to  a  case  like  the  one  at 
bar,  where  the  regrade  is  confessedly  without 
any  la\\'ful  aiithority.    Hence,  it  was   error 
for  tlie  trial  court  to  follow  that  rule  in  the 
case  at  bar.    It  would  be  anomalous  to  hold  j 
that  one  may  enter  upon  and  injure  the  land  ' 
of   another,    without    any   lawful    authority, 
as  a  mere  trespasser,  and  then  defeat  an  ac- 
tion therefor  on  the  ground  that  such  unlaw-   j 
ful  acts  were  beneficial   to  the  land   or  its  I 
owner.    It    is    well    settled    that    one    who 
makes  such  wrongful  entry  upon  land,  and 
erects  fixtures  thereon,  thereby  loses  title  to 
the  fixtures.    Huebschmann  v.  McHenry,  29 
Wis".  655;  Kimball  v.  Adams,  52  Wis.  554,  9 
N.  W.  Rep.  170.    The  plea  of  good  faith  by   I 
such  trespasser  is    not    even    available    in 
equity,   as   against  the   rightful  and   equita-  I 
ble  owner  of  the  land.    Honzik  v.  Delaglise, 
65  Wis.  501,  27  N.  W.  Rep.  171,  and  cases 
there  cited.    Such  trespasser  is,  in  all  cases,  j 
liable  to  actual  damages;  and,  although  he  I 
may  have  benefited  the  land,  still  he  would  [ 
be  liable,    at  least,    for    nominal    damages. 
Murphy  v.  City  of  Fond  du  Lac,  23  Wis.  365; 
3  Sedg.  Dam.   §  923.    The  measure  of  dam-  ! 
a^s,  in  such  case,  is  the  amount  of  injury  di- 
rectly resulting  from  the  unlawful  acts  com- 
mitted.   Id.    In  trespass  quare  clausum  the 
plaintiff    may    be    entitled    to    consequential 
damages.    Id.  §  927.    But  it  is  unnecessary  to 
continue  the  discussion,  since  the  rule  sanc- 
tioned by  this  court  in  the  cases  of  Crossett 
V.   City   of  Janesville  and  Addy  v.    City  of 
Janesville,  cited,  where  such  regrading  was 
without  authority  of  law,  seems  to  be  sub- 
stantially correct.    For    the    errors    in    the 
charge,    referred    to,    the   judgment    of    the 
circuit  coiirt  Is  reversed,   and  the  cause  is 
remanded  for  a  new  trial. 


272 


STREETS   AND    BKIDGES. 


CITY   OF   CHICAGO   v.  BURCKY. 

(42  iSr.  E.  ITS,  158  111.  103.) 

Supreme  Court   of  Illinois.     Oct.   11,    1895. 

Appeal  from  appellate  court.  First  district. 

J.  M.  Palmer,  W.  S.  Johnson,  and  B.  Boy- 
den,  for  appellant    Alex.  Clark,  for  appellee. 

CRAIG,  C.  J.  The  viaduct  and  its  approaches, 
constructed  along  tlie  south  Une  of  Sixty-First 
street,  was  about  one-quarter  of  a  mile  long, 
f.nd  extended  from  Wentworth  avenue  to  State 
sti'eet  The  construction  of  the  viaduct  opiwsite 
the  plaintiff's  land  prevented  the  laying  out  of 
aLy  sti'eets  south,  and  stopped  all  travel  in  that 
direction,  while  the  vacation  of  that  portion  of 
Sixty-First  street  crossed  by  the  railroad  tracks 
stopped  all  travel  west,  so  that  the  property  of 
plaintiff,  abutting  on  Sixty-Firet  street,  be- 
tween the  railroad  tracks  and  State  street,  was 
shut  in,  and  all  access  shut  off  from  the  south 
and  from  the  west.  By  the  construction  of 
the  viaduct  south  of  plaintiff's  property,  and 
by  closing  the  street  west  of  the  property,  and 
thus  stopping  all  commimication  south  and 
west,  it  is  plain  that  plaintiff's  property  was 
seriously  damaged;  but  it  is  contended  that 
the  damages  she  has  sustained  are  not  special 
in  their  character,  but  are  of  the  same  kind 
as  those  sustained  by  the  general  public,  and 
upon  this  ground  no  recovery  can  be  had.    If 

(the  damages  sustained  by  the  plaintiff  are  of 
the  same  kind  as  those  sustained  by  the  pub- 
I  lie  at  large,  differing  only  in  degree,  and  not 
I  in  kind,  or  if  the  damages  sustained  by  the 
'  plaintiff  are  of  the  same  kind  sustained  by  the 

I  general  public,  the  only  difference  being  in  the 
excess  of  damages  sustained  by  plaintiff,  then, 
1  imder  the  well-settled  rules  of  law  which  con- 
1  trol  cases  of  this  character,  she  could  not  recov- 
'  er.    City  of  Chicago  v.  Union  Bldg.  Ass'n,  102 
111.  379;    City  of  East  St.  Louis  v.  O'Flynn, 
119  111.  200,  10  N.  E.  305;   Parker  v.  Catholic 
.Bishop,   146  111.   158,  34   N.   E.   473.     Where 
/  damages  are  sustained  by  the  public  at  large, 
I  but  in  different  degrees,  the  law  does  not  con- 
I  fer  a  remedj-.     Thus  in  Davis  v.  Com'rs,  153 
Mass.  218,  26  N.  E.  848.  it  is  said:    "The  gen- 
leral  doctrine  is  familiar  that  ordinarily   one 
cannot  maintain  a  private  action  for  loss  or 
damage  which  he  suft'ers  in  common  with  the 
rest  of  the  community,  even  though  his  loss 
may  be  greater  in  degree."    The  reason  for  the 
rule  is  that  a  contrary  doctrine  would  encour- 
age many  trivial  suits.  In  Shaw  v.  Railroad  Co., 
159  Mass.  507,  35  N.E.  92,  the  court  say:  "The 
only  right  of  the  plaintiff  to  use  the  highway  is 
that  of  the  public  generally.     Where  one  suf- 
fers in  common  with  all  the  public,  although 
from  his  proximity  to  the  obstructed  way,  or 
otherwise,  from  his  more  frequent  occasion  to 
use  it,  he  may  suffer  in  a  greater  degree  than 
others,  still  he  cannot  have  an  action,  because 
It  would  cause  such  a  multiplicity  of  suits  as 
to  be,  of  itself,  an  intolerable  evil."    In  Smith 
V.  City  of  Boston,  7  Ctish.  2.54,  in  passing  on 
the  question,  the  court  held  tliat  a  landowner 
could  not  recover  unless  he  suffered  a  special 


damage,  not  common  to  the  public.    In  Heller 
v.  Railroad  Co.,  28  Kan.  446,  in  the  discus- 
sion of  the  question,  the  court  said:    "Where 
a  party  owns  a  lot  which  abuts  upon  that  por- 
tion of  the  street  vacated,  so  that  access  to 
the  lot  is  shut  off,  it  is  clear  that  the  lot  own- 
er is  directly  injured,  and  may  properly  chal- 
lenge the  action.     The  closing  up  of  access  to 
the  lot  is  the  direct  result  of  the  vacating  of 
the  street,  and  he,  by  the  loss  of  access  to 
his  lot,  suffers  an  injury  which  is  not  com- 
mon to  the  public.     But  in  the  case  at  bar 
access  to  plaintiff's  lots  is  in  no  manner  in- 
terfered with.     The  full  width  of  the  street  in 
front  and  on  the  side  is  free  and  undisturbed, 
and  the  only  real  complaint  is  that,  by  va- 
cating   the    street    away    from    her    lots,    the 
course  of  travel  is  changed;  but  this  is  only 
an  indirect  result."     In  the  decision  of  the 
question  in  City  of  Chicago  v.   Union   Bldg. 
Ass'n,  102  111.  379-400,  it  is  said:     "In  the 
American  Law  Register  for  October,  1880,  one 
of  the  learned  editors  of  that  periodical,  Mr. 
Edmund   H.   Bennett,  in  a  note  to  Fritz  v. 
Hobson,  after  a  very  elaborate  review  of  the 
principal  cases  bearing  upon  the  question  now 
before  us,  comes,  as  we  think,  very  correctly 
to  the  conclusions:     First.  For   any   act  ob-  ] 
structing  a  public  and  common  right,  no  pri-  1 
vate  action  will  lie  for  damages  of  the  same  / 
kind  as  those  sustained  by  the  general  public, ' 
although  in  a  much  greater  degree  than  any 
other  person.     Second.  An  action  will  lie  for  \ 
peculiar  damages  of  a  different  kind,  though    1 
even  in  the  smallest  degree.    Third.  The  dam-  . 
ages,  if  really  peculiar,  need  not  always  be 
direct  and  immediate,  like  the  loss  of  a  horse,   | 
but  may  be  as  remote  and  consequential  as  in 
other  cases  of  tort.     Fourth.  The   fact   that  \ 
many  otliers  sustain  an  injury  of  exactly  like  I 
kind  is  not  a  bar  to  individual  actions  of  many  I 
cases  of  a  public  nuisance."    Other  cases  hold- 
ing a  like  doctrine  might  be  cited,  but  we  have 
referred  to  enough  to  show  the  current  of  au- 
thority bearing  on  the  question. 

There  is  less  ditticulty  in  determining  what 
the  law  is,  than  in  making  a  proper  applica- 
tion of  the  law  to  the  dift"erent  cases  that  may 
arise.  In  this  case  we  think  it  plain  that  plain-  | 
tiff  was  entitled  to  recover.  Her  property  ' 
fronted  on  Sixty-First  street.  It  extended 
west  to,  and  cornered  with,  that  part  of  the 
street  which  was  vacated.  By  the  vacation  of 
the  street  and  the  erection  of  the  viaduct,  her 
property,  extending  from  the  railroad  tracks 
east  to  State  street,  was  shut  in,  and  all  ac- 
cess from  the  south  and  the  west  was  shut  off. 
What  was  originally  a  thoroughfare  along  the 
entire  line  of  plaintift"s  property,  fronting  on 
Sixty-First  street,  was,  by  the  action  of  the 
town,  turned  into  a  blind  court.  No  other 
property  was  damaged  or  affected  in  the  same 
way,  except  the  small  tract  lying  between 
Wentworth  avenue  and  the  railroad  tracks. 
The  property  of  the  general  public  was  not  ^ 
affected  like  plaintiff's,  nor  were  the  damages 
sustained  by  tlie  public  of  the  same  kind.  Be-  / 
fore  the  action  taken  by  the  town,  plaintiff's 


WHEN  MUNICIPALITY  LIABLE  FOR  CHANGE  OF  GRADE. 


273 


proporty,  fronting  on  Sixty-First  street,  was 
so  situated  that  it  was  available  as  lots  for 
business  purposes,  but,  after  the  action  of  the 
town,  it  was  rendered  useless  fur  that  pur- 
pose. 

It  is  also  claimed  that  by  making  the  sub- 
division, and  opcninp:  Butterfield  street,  which 
separates  plaintiff's  property  from  the  vacated 
portion  of  Sixty-First  street,  plaintiff  has  bar- 
red herself  of  the  right  to  recover.  When  the 
street  was  cleared  up,  and  the  viaduct  con- 
structed, the  town  became  liable  to  pay  such 
ABB.CORP.— 18 


damages  as  the  plaintiff  had  sustained.  The 
rights  of  the  parties,  so  far  as  the  que.stlon  of 
damages  was  concerned,  were  fixed,  and  any 
future  subdivision  which  the  plaintiff  might 
make  of  her  property  could  not  deprive  her  of 
a  right  to  recover  such  damages  as  she  had 
sustained.  From  what  has  been  said,  If  we 
are  correct,  the  instruction  did  not  announce  a 
correct  rule  for  the  determination  of  the  case, 
i'Uil  it  was  prupL-rly  retused.  The  judgment 
of  the  appellate  court  will  be  affirmed.  Af- 
firmed. 


274 


STREETS   AND    BRIDGES. 


CITY  COU^■CIL  OF  AUGUSTA  v.  BURUM 
et  al. 

(19  S.  E.  820,  93  Ga.   68.) 

Supreme  Court  of  Georgia.      Dec.  18.  1893. 

Error  fi'om  superior  court,  Richmond  coun- 
ty; H.  C.  Roney,  Judge. 

Petition  by  P.  &  G.  Burum  &  Co.  and 
others  to  restrain  the  city  council  of  Augusta 
from  the  execution  of  a  resolution  providing 
for  the  removal  of  awnings  and  hanging 
signs.  An  injunction  was  granted,  and  de- 
fendant  brings    error.    Reversed. 

J.  S.  Davidson,  for  plaintiff  in  error.  W. 
W.  Montgomery  and  J.  R.  Lamar,  for  de- 
fendants in  error. 

LUMPKIN,  J.  1.  By  a  special  act  ap- 
proved November  23,  1814  (Acts  1814,  p.  36; 
City  Code  Augusta,  p.  346),  "to  prevent  en- 
croachments on  the  streets  and  highways 
in  the  city  of  Augusta,  and  to  remove  such 
as  now  exist,"  the  municipal  authorities  of 
that  city  were  given  full  power  to  remove 
any  "obstruction  or  encroachment  upon  the 
streets  or  highways,  within  the  limits  of  said 
city,  at  the  expense  of  such  person  or  per- 
sons as  shall  cause  the  same."  The  method 
of  exercising  the  power  thus  conferred  is 
pointed  out  in  section  '6  of  that  act,  which 
declares  "that  the  said  city  council  of  Au- 
gusta shall  have  full  power  and  authority 
to  make  such  by-laws,  rules  and  regulations. 
as  they  may  deem  necessary,  fullj'  and  ef- 
fectually to  prevent  encroachments  on  the 
said  streets  and  highways  hereafter,  and  to 
remove  such  as  now  exist,  and  such  as  may 
hereafter  exist,  as  in  their  opinion  may  be 
least  bvu-thensome  to  the  citizens,  and  best 
calculated  to  promote  the  good  order  and 
welfare  of  said  city  and  its  inhabitants." 
Undoubtedly,  in  the  exercise  of  the  powers 
incident  to  this  gi-ant  of  control  over  the 
streets  of  the  city,  the  municipal  govern- 
ment could,  by  ordinance,  peremptorily  pro- 
hibit the  erection  of  any  awning,  of  what- 
ever material  or  however  constructed,  which 
encroached  ever  so  little  upon  a  street  or 
sidewalk;  and,  as  to  an  awning  built  in  vio- 
lation of  such  ordinance,  the  city  authorities 
could  cause  the  same  to  be  summarily  torn 
down,  with  or  without  notice  to  the  owner. 
The  record,  however,  discloses  that  awnings 
have  existed  in  Augusta  from  a  time  "when 
the  memory  of  man  runneth  not  to  the  con- 
trary," and  that  no  official  action  was  taken 
by  council  in  respect  to  such  structures  un- 
til 1857,  about  43  years  after  the  passage 
of  the  act  of  1814.  Prior  to  18.j7,  the  mu- 
nicipal authorities  seem  to  have  acquiesced 
in  the  erection  of  such  awnings  as  property 
holders  might  deem  proper,  convenient,  and 
safe.  Certain  it  is  that  no  ordinance  having 
direct  reference  to  awnings  was  adopted  un- 
til the  year  last  named,  when  it  was  ordain- 
ed that  "all  posts  and  rails    lixed    in    any 


street  for  the  purpose  of  supporting  any 
awning  shall  be  round,  turned  posts,  and 
shall  be  placed  next  to  and  along  the  inside 
of  the  curb-stone,  and  shall  be  twelve  feet 
in  height  above  the  sidewalks,  including  the 
rail  on  top;"  and  "no  portion  or  any  part  of 
any  cloth  or  canvas  used  as  an  awning 
shall  hang  loosely  down  from  the  same  over 
the  sidewalk  or  foot-path."  Again,  in  1888, 
after  the  lapse  of  about  31  more  years,  an- 
other ordinance  was  adopted,  in  which  it 
was  declared  that  "all  consents  or  permis- 
sions heretofore  granted  by  the  city  council, 
or  by  the  board  of  fire  wardens,"  in  respect 
to  the  erection  of  awnings,  be  revoked;  and 
"no  person  or  persons  shall  build  or  erect 
any  hanging  sign  or  signs,  awning  or  awn- 
ings, on  the  streets  of  this  city  without  first 
obtaining  permission  from  the  streets  and 
drains  committee  of  council  and  the  board  of 
fire  "-ardens  conjointly,  which  permissici; 
may  be  revoked  at  the  pleasin-e  of  council." 
Notwithstanding  this  last  ordinance,  it  does 
not  appear  that  any  action  looking  to  the 
removal  of  existing  awnings  was  taken  by 
the  city  authorities  until  the  28th  of  Feb- 
ruary, 1S93,  when  council  adopted  a  resolu- 
tion in  these  words:  "Resolved,  that  all 
wooden  awnings  in  the  city,  i.  e.  over  streets 
or  sidewalks,  be  taken  down  within  sixty 
days,  at  the  expense  of  the  owners."  The 
petition  in  the  present  case  was  brought  to 
restrain  the  municipal  authorities  from  ex- 
ecuting this  resolution,  which  is  in  the  na- 
ture of  an  ordinance.  The  injunction  prayed 
for  was  granted,  and  the  city  council  ex- 
cepted. 

Petitioners,  among  other  things,  alleged 
that  the  awnings  in  question  were  erected,  at 
considerable  expense,  with  the  full  knowl- 
edge and  consent  of  the  city  authorities; 
"that  the  last  erected  awning  of  petitioners 
was  put  up  more  than  nine  years  ago,  and 
most  of  them  have  been  where  they  now  are 
for  more  than  twenty  years,  except  that 
when  new  material  was  inserted  therein  to 
strengthen  an  old  awning  or  rebuild;"  that 
these  awnings  are  in  good  order  and  repair, 
and  are  of  such  kind  as  have  customarily 
been  constructed,  and  allowed  by  the  city  to 
exist,  time  out  of  mind,  and  that  they  offer 
no  obstruction  to  the  full  and  free  enjoy- 
ment of  the  streets  and  sidewalks.  Tlie  con- 
tention of  petitioners,  therefore,  is  that  it 
would  be  inequitable,  unjust,  and  oppres- 
sive for  council  now  to  be  allowed  to  ca- 
priciously revoke  the  license  conferred,  and, 
irrespective  of  any  necessity  for  so  doing, 
to  summarily  destroy  their  property,  with- 
out compensation,  and  without  even  notice 
to  them,  or  an  opportunity  to  be  heard  up- 
on the  question  of  removing  their  awnings. 
The  defendant,  though  not  conceding  that 
the  awnings  of  petitioners  were  erected,  or 
have  been  allowed  to  remain,  under  its  ex- 
press permission,  replies  that,  even  if  li- 
censes wore  granted,  they  could  be  revoked 
at  pleasure,  and  that,  in  the  exercise  of  the 


MUNICIPAL   CONTROL,   OF    STREETS. 


police  powers  with  which  the  municipal  au- 
thorities  are  vested,   the  awnings  could  be 
rt'inovod    summarily    without    notice   to   the 
owners.    It  is  quite  certain  from  the  record 
that,  if  the  awnings  involved  in  this  contro- 
versy have  any  rightful  existence,  it  can  be 
accounted  for  only  on  the   assumption  that 
thoy   were  erected  under  license,   either  ex- 
press or  implied,  from  the  city  government, 
and,  no  matter  how  long  they  have  existed, 
tlicir   continuance   must  be  referred   to   the 
original  license,  or  to  a  renewal  or  repetition 
of    the    same.    The    question,    therefore,    is, 
can  the  doctrine  of  estoppel,  under  these  cir- 
cumstances, be  invoked  to  prevent  the  city 
a.uthorities    from    removing     encroachments 
which,  undoubtedly,  as  an  original  question, 
they  had  full  power  to  prevent?  or,  in  other 
words,  is  the  license  to  erect  and  maintain 
tliese    awnings    perpetual    and    irrevocable? 
In  answer  to  this  question,  we  will,  in  the 
first  place,  remark  that  no  express  legisla- 
tive authority  has  ever  been  conferred  upon 
the  city   government  to  grant  the  right  to 
erect  and  perpetually  maintain  awnings  over 
the  sidewalks  of  the  city,  and,  this  being  so, 
that  such  authority  has  never  existed.    The 
municipal  government  of  Augusta,  irrespec- 
tive of  the  special  act  of  1814,  has,  we  pre- 
sume, as  the  authorities  of  most  cities  have, 
the  power  to  regulate  and  control  the  streets 
and    sidewalks.    Beyond    question,    the    city 
council  of  Augusta  has,  by   virtue  of  that 
special  act,  an  express  and  clear  legislative 
riglit  to  remove  obsti'uctions  and  encroach- 
ments on  the  streets.    This  right  was  wisely 
conferred   for   the  benefit  of  the  public,  to 
whom  the  streets  and   sidewalks  really  be- 
long, and  the  city  council  cannot,  in  the  ab- 
sence of  clear  and  unequivocal    authority  from 
the  legislature,  perpetually  deprive  itself  of 
this  right  by  ordinance,  contract,   or  other- 
wise.   Public  policy  forbids  that  a  city  gov- 
ernment should  be  allowed  to  part  with  any 
of  its  powers  the  exercise  of  which  may  be 
necessary  to  secure  and  conserve  the  public 
welfare;    and    any   violation   of   this    policy 
necessarily  tends   to  an  impairment  of  the 
usefulness  and  elficiency  of  the  city  govern- 
ment, and  consequently  to  defeat,  in  a  greater 
or  a  less  degree,  the  very  purposes  for  which 
it  was  created.    In  the  absence  of  a  clear 
grant  of  power  from  the  legislature,  the  mu- 
nicipal authorities  can  do  notliing  amount- 
ing, in  effect,  to  the  alienation  of  a  substan- 
tial right  of  the  public.    In  a  case  like  that 
of  Laing  v.  City  of  Americus,  SO  Ga.  75(5,  13 
S.   E.   107,   the  applicability  of  the  doctrine 
here    announced    is    clear   enough,     because 
tliere  the  obstruction  placed  upon  the  side- 
walk was,  without  doubt,  a  nuisance  per  se; 
but,   for  the  pm-poses  of  the   present  case, 
it  makes  no  difference  whether  an  awning  is 
a   nuisance  per  se   or  not.    In   Hawkins   v. 
Sanders,  45  ISIich.  491,  8  N.  W,  98,  it  was 
held  that  a  wooden  awning  over  a  sidewalk, 
in   front   of  a    store,    was    not.    There    can, 
however,  be  no  doubt  that  an  awuiug  of  any 


kind,  extending  over  a  sidewalk,  and  sup- ' 
ported  by  posts,  is  an  encroachment,  and  to 
some  extent,  at  least,  an  obstruction;  and  it 
has  been  shown,  we  think,  that  the  munici- ' 
pal  government  of  Augusta  has  never  had 
any  authority  to  grant  permission  to  any 
of  its  citizens  to  erect  and  maintain  in  per- 
pettiity  any  such  encroachment  or  obstruc- 
tion in  that  city.  It  is  equally  true,  we  think,  ' 
that  no  lapse  of  time  could  render  valid,  so 
as  to  become  irrevocable,  a  license  which 
the  city  never  had  the  power  to  grant  in 
perpetuity.  Although,  in  Tennessee  v.  Vir- 
gin, 36  Ga.  388,  this  court  held  that  as  to  ac- 
tions against  a  citizen  the  latter  could,  un- 
der the  act  of  1850  (Code,  §  2925a),  plead 
the  statute  of  limitations,  and  that  in  Geor- 
gia the  maxim  of  "nullum  tempus  occm'rit 
regi"  had  been  abrogated,  we  are  qiute  cer- 
tain that  no  statute  of  limitations  or  pre- 
scription of  any  kind  could  so  operate  as  to 
abridge  in  any  manner  the  exercise  of  the 
legitimate  legislative  powers  of  the  state 
conferred  by  the  people  for  the  common  well- 
fare  of  all.  In  this  sense,  at  least,  the  kin- 
dred maxim  "nullum  tempus  occurrit  rei- 
publicae"  is  still  of  force,  and  it  is  apphca- 
ble  to  a  city  cQuncil,  so  far  as  its  legislative 
powers  conferred  upon  it  by  statute  are  con- 
cerned, as  well  as  to  the  state  itself,  the  city 
government  being,  in  this  respect,  a  part  of 
the  lawmaking  power  of  the  commonwealth. 
In  this  country  the  people  are  the  rulers,— 
the  somrce  of  all  power,— and  it  cannot  be 
sound  doctrine  that  their  servants  in  any 
lawmaking  department  can,  by  the  lapse  of 
time,  any  more  than  by  their  own  action,  be 
deprived  of  powers  the  exercise  of  which 
is  essential  or  necessary  to  the  proper  perform- 
ance of  their  duties  and  obligations  to  the 
public. 

2.  Having  shown  that  licenses  granted  by 
the  city  council  of  Augusta  to  erect  awnings, 
whether  such  licenses  were  express  or  im- 
plied, could  not  for  any  reason  be  irrevoca- 
ble, we  will  now  state  and  briefiy  discuss  an- 
other principle  applicable  to  the  facts  of  the 
present  case.  We  think  that  where  citizens 
of  Augusta,  with  the  permission  of  the  city 
authorities,  erected  awnings,  which,  of 
coiu-se,  involved  expense,  there  would  be  an 
equitable  estoppel  against  a  needless  or  ca- 
pricious revocation  of  the  permission  \mtil 
after  the  lapse  of  sufficient  time  to  allow  the 
parties  incurring  the  expense  to  realize,  in 
the  use  and  enjoyment  of  their  awnings,  a 
fair  reUu-n  for  their  outlay.  Whatever  may 
be  the  law  in  other  jurisdictions,  it  is  now 
well  settled  in  Georgia  that,  as  between  pri- 
vate persons,  a  parol  license,  though  primari- 
ly revocable,  is  not  so  when  the  licensee  has 
executed  it,  and  in  so  doing  has  incurred  ex- 
pense. This  doctrine  was  announced  as  far 
back  as  3  Ga.  82,  in  Sheflield  v.  Collier,  and 
again  in  Mayor,  etc.,  v.  Franklin,  12  Ga.  239. 
in  which  Judge  Nisbet  said:  "The  rule  is,  as 
stated,  that  a  parol  license  is  revocable;  but 
it  has  some  exceptions.     If  the  enjoyment  of 


276 


STREI-yrS   AND    BRIDGES. 


it  must  be  preceded  necessarily  by  the  ex- 
penditure of  money,  and  tlie  grantee  has 
made  improvements  or  invested  capital  in 
consequence  of  it,  it  becomes  an  agreement 
for  a  valuable  consideration,  and  he  a  pur- 
chaser for  value."  Pages  242,  243.  See,  al- 
so, Winham  v.  McGuire,  51  Ga.  578,  and  Rail- 
road Co.  V,  Mitchell,  69  Ga.  114.  There  are 
other  cases  decided  by  this  court  to  the  same 
effect,  but  the  above  will  suffice.  The  quo- 
tation from  Judge  Nisbet's  opinion  is  fol- 
lowed by  these  words:  "'In  such  cases  the 
books  say  it  would  be  against  all  conscience 
to  permit  the  grantor  to  recall  the  license  as 
soon  as  the  benefit  expected  from  the  ex- 
penditure is  beginning  to  be  derived."  The 
spirit  of  the  principle  thus  announced  is, 
within  the  limits  indicated,  applicable  to  the 

'  case  before  us.  The  city  council  could  sub- 
serve no  interest  of  the  public  by  allowing 

I  awnings  to  be  erected,  and  then,  immediate- 
ly, without  reason,   and  in  mere  caprice  or 

(  wantonness,— if  such  a  thing  be  conceivable, 
— reqmring   them   to   be    removed.     Such    a 

(  com'se  would  be  harsh  and  unjust,  without 
excuse,  and  unnecessary.  This  would  be  true 
even  under  the  ordinance  of  ISSS,  in  which 
the  city  council  expressly  reserved  the  right 
to  revoke  at  pleasure  any  permission  which 
might  be  given  for  the  erection  of  awnings. 
This  reservation  would  not  confer  upon  the 
city  authorities  any  right  by  granting  a  citi- 
zen permission  to  erect  an  awning,  to  mis- 
lead him  into  the  belief  that  he  would  be  al- 
lowed to  enjoy  it  for  at  least  a  reasonable 
time,  and  then  wantonly  force  him  to  destroy 
a  structure,  to  erect  which  he  had,  on  the 
faith  of  this  belief,  incurred  expense.  It  is 
also  established  and  sound  law,  however, 
that  a  verbal  license,  even  when  fully  exe- 
cuted, is  not  necessarily  forever  irrevocable. 
In  Wingard  v.  Tift,  24  Ga.  179,  it  was  held 
that  a  verbal  license  to  erect  a  dam  and  fish 
traps  was  not  a  license  to  renew  the  same 
after  they  had  been  washed  away  by  high 
water.  In  that  case.  Judge  Benning  said  (on 
page  182):  "There  is  no  dispute  that  such  a 
license  is  revocable  if  its  revocation  does  no 
damage  to  the  person  to  whom  it  has  been 
granted.  Therefore,  if  Tift  had  chosen  to  re- 
voke this  license  before  the  first  dam  and 
traps  had  been  put  in,  he  might  have  done 
so.  In  that  case  the  license  would  not  have 
been  the  means  of  putting  Wingard  and 
Floyd  to  any  expense.  So,  Tift  might  revoke 
the  license  at  any  time  after  the  dam  and 
traps  had  been  sw(>pt  away,  for  then  things 
would  stand  just  as  they  stood  in  the  begin- 
ning." Following  this  doctrine,  and  remem- 
bering, for  the  reasons  already  given,  that 
the  city  authorities  are  not  to  be  held  as 
strictly  to  the  terms  of  licenses  granted  by 
them  as  private  persons  would  be,  we  are 
satisfied  that  persons  who  have  been  allowed 
to  reap  substantially  the  beuefits  of  the  mon- 


ey they  have  expended  In  putting  up  awn- 
ings can  have  no  cause  of  complaint  that  the 
city  thereafter  revokes  the  permission  given 
to  erect  them.  After  they  have  enjoyed  this^ 
benefit,  we  see  no  reason  why,  under  the 
broad  powers  conferred  by  the  act  of  1814, 
the  city  government,  in  pursuit  of  a  policy  to 
have  all  awnings  in  the  city  constructed  of 
such  materials  and  in  such  style  as  is  deem- 
ed proper  and  smtable  under  existing  condi- 
tions, having  reference  to  the  convenience  of 
the  public,  the  sightliness  of  the  streets,  and 
other  proper  and  reasonable  considerations, 
may  not  cause  to  be  removed  old  awnings, 
which  had  already  been  permitted  to  stand 
for  many  years.  When  the  time  has  arrived 
when  the  city  may  fairly  and  in  good  faith 
revoke  existing  licenses  to  maintain  these 
structures,  the  municipal  authorities  may 
have  them  removed  as  encroachments  upon 
the  streets,  no  longer  authorized;  and  if  the 
owners,  after  reasonable  and  fair  notice,  fail 
or  refuse  to  remove  them,  the  city  may  have 
them  removed  at  their  expense. 

We  again  call  attention  to  the  fact  that,  as- 
lO  the  awnings  involved  in  this  controversy, 
me  petition  alleges  that  the  one  last  erected 
was  put  up  more  than  9  years  ago,  and  that 
most  of  them  have  been  in  existence  for 
more  than  20  years.  It  is  not  stated  that  any 
particular  awning  was  rebuilt.  In  the  ab- 
sence of  evidence  to  the  contrary,  we  think 
it  a  fair  presumption  that  those  who  erected 
the  awnings  have  been  fully  compensated,  by 
the  use  and  enjoyment  of  the  same,  for  all 
expenditiu-es  made  upon  the  faith  of  the  per- 
mission or  license  obtained  from  the  city. 
Therefore  a  resolution  or  ordinance  revoking 
the  license  is  prima  facie  valid,  and  conse- 
quently its  enforcement  should  not  be  en- 
joined. 

We  have  not  overlooked  the  fact  that  in 
one  of  the  affidavits  presented  in  support  of 
the  petition,  and  sworn  to  by  a  number  of 
affiants,  the  following  loose  and  general 
statement  occurs:  "The  awnings  of  depon- 
ents have  been  where  they  now  are  (except 
when  replaced  by  new  material,  for  the  pur- 
pose of  repair  and  reconstruction)  for  a  peri- 
od of  from  two  to  twenty-five  years."  It  i» 
obvious,  however,  that  petitioners  are  enti- 
tled to  no  relief  greater  than  would  be  au- 
thorized by  the  allegations  of  their  petition; 
and,  besides,  a  mere  general  averment  in  the 
affidavit  to  the  effect  that  some  of  the  awn- 
ings have  been  erected  for  only  two  years, 
without  specifying  how  many,  where  they 
were  situated,  or  to  whom  they  belonged, 
would  not  authorize  the  court  to  restrain  the 
city  authorities  generally  from  enforcing  the 
ordinance;  the  gravamen  of  the  petition  be- 
ing that  the  injunction  was  sought  in  order 
to  protect  awnings,  the  most  recently  erected 
of  which  had  been  in  existence  for  at  least 
nine  years.     Judgment  reversed. 


MUNICIPAL    CONTIiOL    OF    STREETS. 


277 


INHABITANTS  OF  CITY  OF  TIIENTON  v. 
TRENTON  PASS.  RY.  CO. 


(27  Atl.  483.) 

Court  of  Chancery  of  New  Jersey. 
18U3. 


Sept.  14, 


Bill  by  the  inhabitants  of  the  city  of  Tren- 
ton to  enjoin  the  Trenton  Passenger  Rail- 
way Company,  Cousolklated,  from  rebuilding 
its  roadway.     Injunction  granted. 

Edwin.  Robert  Walker,  for  complainants. 
James  Buchanan,  for  defendant. 

BIRD,  V.  C.  Whatever  else  may  be  with- 
in the  scope  and  prajer  of  tliis  bill,  the  only 
qui'stiou  that  I  am  called  upon  to  consider 
iiud  shall  consider  at  this  time  is  whetlier 
the  defendant  should  be  enjoincxl  from  fur- 
ther prosecuting  the  work  of  rebuilding  or 
reconstriicting  its  roadl>ed  on  a  portion  of 
East  State  street,  in  the  city  of  Trenton, 
•or  not.  I  Siiy  "rebuilding  or  reconstiaict- 
ing,"  because  I  thought  it  may  be,  although 
I  do  not  say  it  is,  important  to  preserve, 
in  tlie  interests  of  the  parties  concerned, 
the  well-known  distinction  between  rebuild- 
ing or  reconstructing  and  repairing.  In  my 
judgment,  the  case  made  by  the  defendant 
itself  exhi])its  in  the  amplest  manner  the 
work  of  rebuilding  or  reconstructing,  as  dis- 
tingulslied  from  repairing.  The  proof  shows 
that  the  work  is  not  taking  out  here  and 
tliere  a  tie  or  a  crosspiece  or  a  rail,  insert- 
ing new  ones,  but  the  complete  or  entire 
removal  of  the  structure  which  has  formerly 
been  used  as  a  roadbed,  and  putting  in  place 
tlicreof  wholly  new  and  different,  and  in 
some  respects  improved,  material.  One  or 
more  expert  witnesses  of  the  defendant  say 
that  they  very  carefully  examined  the  old 
roadbed  'and  the  materials  in  use,  and  say, 
in  effect,  that  they  found  them  so  worn  out 
and  dilapidated  that  they  were  wholly  be- 
yond repair.  Tlie  concliLsion,  then,  must  most 
oertanily  be,  that  the  work  in  which  the 
defendant  has  been  engaged,  and  which  it 
proposes  to  continue,  is  nothing  less  tlian  a 
rebuilding  or  reconstniction  of  its  track  or 
roadbed. 
/  The  complainants  insist  that  this  work  has 
(  tioen  carried  on  without  the  permission  of 
I  the  board  of  public  works,— that  branch  of 
f  the  city  authorities  which,  it  is  admitted,  has 
I  the  control  or  right  to  give  directions  in 
f    finch    matters.     Tliere    is    perhaps    no    ques- 

Ition  as  to  the  right  or  power  of  tiiis  branch 
of  the  mimicipal  authority  to  give  directions 
as  to  the  manner  in  which  tliis  work  shall 
be  done,  and  to  superintend  the  work  as  it 
is  being  done.     The  defendant,  by  its  con- 
duct,   admits    the    truth   of   tliis    insistment. 
/    Before  commencing  tlie  removal  of  the  old 
roadbed,  its  president  met  one  of  the  mem- 
f    bei-s  of  the  board  of  public  works,  and  in- 
'    formed  him  that  the  defendant  company  in- 
(    tended  to  begin  and  carry  on  this  work.    The 
<iefendant  insists  that  he  obtained  the  per- 


mission of  tliis  member  of  the  board  of  pub- 
lic works,  and  that  it  was  only  after  he  ob- 
tained such  permission  that  the  company 
commenced  the  work  of  rebuilding.  This 
insistment  upon  the  part  of  the  defendant 
is  so  controverted  by  the  bill  and  athdavits 
that  I  feel  fully  justified  in  coming  to  the 
conclusion  that  the  defendant's  resistance 
on  this  ground  must  fail. 

I  have  said  that,  as  I  understand  the  ar- 
gument of  counsel  for  the  defendant,  it  is 
conceded  that,  under  the  charter  of  the  city 
of  Trenton,  the  municipal  autliorities  have 
control  of  the  streets,  highways,  and  alleys, 
so  far  as  to  give  directions  as  to  the  time 
when,  and  the  manner  in  wliich,  work  or 
improvement  or  change  thereon  or  repair 
thei-cH>f  is  to  be  done.  The  legislature,  in 
creating  suoh  power,  declared  that  "the  com- 
mon council  shall  have  power  within  the 
said  city  to  make,  establish,  publish,  and 
modify,  amend,  or  repeal  ordinances,  rules, 
regulations,  and  by-laws  to  prescribe  the 
manner  in  which  corporations  or  persons 
shall  exercise  any  privilege  granted  to  them 
in  the  use  of  any  street,  avenue,  highway, 
or  alley  in  said  city,  or  in  the  digging  up 
of  any  street,  avenue,  highway,  or  alley  for 
the  purpose  of  laying  down  pipes,  or  any 
other  piu'pose  w^hatever,  and  to  proliibit  and 
prevent  any  such  use  or  work  at  such  times 
and  seasons  of  the  year  as  they  may  desig- 
nate." In  my  judgment,  this  is  so  com- 
prehensive as  to  include  the  work  of  the 
defendant,  which,  it  is  admitted,  is  so  ex- 
tensive in  its  natvire  as  to  almost  entirely 
obstract  the  use  of  said  street,  at  the  place 
of  its  operation,  for  any  ordinary  purposes 
of  travel  whatever. 

I  do  not  imderstand  that  there  is  any  dis- 
pute as  to  the  claim  of  the  complainants 
that  the  board  of  public  works  of  the  city 
has  succeeded  to  all  the  rights,  powei-s,  and 
duties  which  were  confeiTod  upon  the  com- 
mon council  by  the  act  aforesaid.  This  law 
is  so  reasonable  and  so  essential  to  the  wel- 
fare of  the  city  and  all  its  business  inter- 
ests that  it  not  only  meets  with  universal 
approval,  but  it  is  conceded  on  every  hand 
that  without  it  conflicting  interests  w^ould  be 
so  great  and  constant  as  to  provoke  unceaS' 
ing  tunnoll,  discord,  and  litigation.  Every 
one,  whether  coiporations  or  individuals, 
who  has  any  riglits  in  the  streets,  would 
be  asserting  his  rights  to  preference.  The 
defendant  companj'  most  wisely  or  prudent- 
ly yields  to  this,  and,  as  I  understand  the 
case,  supposed  it  was  acting  within  the  re- 
quirements of  the  charter  wlien  it  gave  no- 
tice to  a  member  of  the  board  of  public 
woi-ks  of  its  intention  to  commence  and  carry 
on  tlie  work  of  rebuilding.  It  doubtless 
supposed  it  had  gone  far  enough  to  comply 
with  the  requirements  of  tlie  law.  But  in  this 
respect,  so  far  as  I  am  able  to  judge,  it  was 
mistaken.  It  did  not  have  tlie  authority 
which  the  law  determines  to  be  necessary 
before  it  undertook  the  work.     It  is  there- 


278 


STREETS    AND    BRIDGES. 


fore  my  duty  to  advise  that  the  order  to 
show  cause  be  made  absolute,  restraining 
the  defendant  from  fuilher  prosecuting  the 
work    referred    to   in    the    bill    of    complaint 


until  it  shall  have  made  application  to  the 
proper  authorities,  and  obtained  such  direc- 
tions respecting  the  carrying  on  of  the  work 
as  the  city  authorities  have  a  right  to  make. 


MUNICIPAL  CONTROL  OF  STREETS. 


279 


CITY  OP  ST.  PAUL  v.  CHICAGO,  M.  &  ST. 
P.  RY.  CO. 

(65  N.  W.  649,  63  Minn.  330.) 

Supreme  Court  of  Minnesota.    Jan.  7,  1896. 

On  rehearing.     Affirmed. 

For  former  opinion,  see  G3  N.  W.  267. 

MITCHELL,  J.  This  appeal  has  once  be- 
fore been  considered  by  this  court.  63  N.  W. 
267.  The  record  and  briefs  were  very  vol- 
uminous, and  the  main  issue  was  whether  the 
defendant  had  acquired  absolute  title  to  the 
premises  in  controversy  by  adverse  posses- 
sion. The  oral  arguments  were  wholly,  and 
the  briefs  mainly,  devoted  to  a  discussion  of 
that  question.  The  natural  result  was  that 
other  and  less  important  issues  received  but 
little  attention  from  either  court  or  counsel. 
The  defendant's  claim  of  certain  rights  un- 
der City  Ordinance  No.  286  was  disposed  of 
In  our  opinion  by  merely  saying  that  the  ordi- 
nance amounted  to  nothiug  more  than  a  re- 
vocable license;  that  its  language  was  that 
of  a  license  or  permit,  and  not  of  grant.  Up- 
on an  application  for  a  reargument  of  this 
question,  we  became  satisfied  that  suilicient 
consideration  had  not  been  given  to  it,  and 
that  there  was  at  least  grave  doubt  whether 
the  ordinance,  if  valid,  did  not  constitute  an 
irrevocable  contract  between  the  city  and  de- 
fendant. We  therefore  ordered  a  reargu- 
ment of  the  question  as  to  the  forcfe  and  ef- 
fect of  this  ordinance,  and  the  rights  of  the 
defendant  under  it.  Tliis  involves  two  ques- 
tions: First,  the  authority  of  the  city  coun- 
cil of  St.  Paul  to  pass  the  ordinance;  and, 
second,  if  they  had  the  power  to  pass  it,  its 
force  and  effect.  These  questions  should  be 
considered  in  the  order  named;  for,  if  the 
ordinance  is  held  invalid,  it  will  be  unneces- 
sary to  consider  the  second  question  at  all. 

The  land  in  'question  fronts  on  the  Missis- 
sippi river,  and  was  dedicated  by  the  original 
proprietor  to  public  use  as  a  "levee."  De- 
fendant's grantor,  being  in  possession  of  the 
premises  and  claiming  adversely  to  the  city, 
had  erected  thereon  a  wooden  freight  house, 
fronting  on  the  river,  and  some  400  or  450 
feet  long.  In  1881,  after  defendant  took  pos- 
session, it  presented  a  petition  to  the  com- 
mon council  of  the  city  of  St.  Paul,  stating 
that  it  contemplated  taking  down  this  freight 
house,  and  replacing  it  witli  a  large  and  per- 
manent one,  and  asking  permission  in  the 
meantime  to  erect  a  temporary  wooden  struc- 
ture. This  permit  Avas  granted,  the  limit  of 
the  permit  being  two  yeai-s.  In  March,  1882, 
the  defendant  presented  a  further  petition  to 
the  common  council,  stating  that  it  was  then 
reiidy  to  construct  its  new  freight  house, 
which  was  described  as  to  be  a  large,  ele- 
gant, and  permanent  structure,  plans  of 
which  were  submitted.  The  petition  further 
stated  tliat,  in  order  to  carry  out  the  plan  of 
the  structure  as  demanded  by  the  gruwing 


commerce  of  the  city,  It  would  be  necessary 
to  extend  the  river  front  of  the  building  out 
Into  the  river  from  seven  to  ten  feet  further 
than  the  front  of  the  old  one;  and  requested 
the  council  to  approve  the  plan  of  the  pro- 
posed building,  and  to  grant  permission  to 
extend  it  out  into  the  river  to  the  limit  above 
mentioned.  The  plan  proposed  was  of  a 
building  about  600  feet  long  and  50  feet  wide, 
of  brick,  with  stone  foundation  and  a  slate 
roof.  In  response  to  this  petition  the  council, 
In  April,  1882,  by  a  unanimous  vote,  passed 
the  ordinance  in  question  (No.  280),  which  is 
as  follows: 

"Section  1.  That  permission  be,  and  the 
same  is  hereby  given  to  the  Chicago,  Milwau- 
kee &  St.  Paul  Railway  Company  to  take 
down  and  remove  the  old  freight-house,  which 
is  owned  and  used  by  said  company,  standing 
next  below  Sibley  street  on  the  levee,  and  to 
erect  a  new  freight  building  upon  the  site 
now  occupied  by  said  old  freight-house,  pro- 
vided that  the  new  structure  may  be  extend- 
ed a  distance  of  ten  feet  nearer  the  Mississip- 
pi river  than  the  old  one,  if  the  city  engineer 
shall  be  of  the  opinion  that  the  same  shall  in 
no  manner  interfere  with  the  navigation  of 
said  river.  And  provided  further,  that  said 
new  freight-house  shall  be  built  substantially 
in  accov<lance  with  the  plans  on  file  in  the 
office  of  the  city  clerk.  And  provided  that 
the  basement  or  lower  story  fronting  on  the 
river  shall  be  laid  with  substantial  floor,  and 
said  lower  story,  together  with  the  platform 
on  the  river  front,  and  the  railway  track 
along  the  said  river  front  shall  be  open  and 
subject  to  the  use  of  the  public  for  all  wharf- 
age and  transfer  purposes  without  charge, 
and  a  sufficient  platform  and  entrance  for 
drays  sliall  be  provided  for  said  lower  story 
at  the  end  of  said  building. 

"Sec.  2.  Nothing  in  this  ordinance  contain- 
ed shall  be  construed  as  waiving  any  of  the 
rights  of  the  city  of  St.  Paul  in  and  to  the 
real  property  proposed  to  be  occupied  by  said 
building. 

"Sec.  3.  Tliis  ordinance  shall  be  in  force 
from  and  after  its  passage." 

Thereupon  the  defendant  proceeded  and 
erected,  and  has  ever  since  maintained,  the 
freight  house,  in  accordance  with  the  provi- 
sions of  the  ordinance. 

It  may  be  here  suggested  that  the  author- 
ity of  defendant's  grantor,  the  St.  Paul,  Min- 
neapolis &  Manitoba  Ry.  Co.,  under  its  char- 
ter (I^ws  1857,  Ex.  Sess.,  c.  1),  "to  construct 
its  railroad  upon  and  along,  across  or  over 
any  public  or  private  highway,"  etc.,  "if  the 
same  shall  be  necessary,"  does  not  extend  to 
or  contemplate  the  construction  upon  a  high- 
way of  stations,  depots,  freight  houses,  or  oth- 
er buildings,  bur  applies  only  to  railroad 
tracks,  where  the  use  of  the  highway  by  the 
railroad  company  will  be  concurrent  with 
that  of  the  general  public,  and  not  exclusive. 
Village  of  Wayzata  v.  Great  Northern  Ry, 
Co.,  50  Minn.  4.".S.  52  N.  W.  913.  It  is  ele- 
mentary  law   that   a   municipal   corporation 


280 


STREETS   AND    BRIDGES. 


has  no  proprietary  rights  in  the  streets,  lev- 
ees, or  other  public  grounds  within  its  limits. 
Whatever  rights  it  has  it  holds  merely  in 
trust  for  the  public.  It  is  equally  elemen- 
tary that  all  its  powers  over  such  public 
grounds  are  derived  from  the  legislature.  It 
can  exercise  no  power  over  them,  except  such 
as  is  given  it  by  the  legislature,  either  ex- 
pressly or  by  necessary  implication.  It  is 
also  well  settled  that  a  grant  of  power  to  a 
city  to  grant  any  privileges  or  rights  in  streets 
or  other  public  grounds  is  to  be  strictly  con- 
strued, and  not  enlarged  by  construction; 
and,  if  there  is  a  fair  or  reasonable  doubt  as 
to  the  existence  of  its  power,  it  will  be  re- 
solved against  the  municipality.  Dill.  Mun. 
Corp.  §  7()5;  City  of  St.  Louis  v.  Bell  Tel.  Co., 
96  Mo.  G23. 

With  these  general  principles  in  mind,  we 
come  to  the  consideration  of  the  provisions  of 
the  charter  of  the  city  of  St.  Paul  relating  to 
the  powers  of  the  city  council  over  public 
grounds  within  its  limits,  and  which  were  in 
force  in  18S2,  when  Ordinance  No.  280  was 
passed.  The  charter  then  in  force  was  Sp. 
Laws  1ST4,  c.  1,  and  amendments.  Subchap- 
ter 4,  §  7,  of  that  act,  provided  that  "the  com- 
mon council  shall  have  the  care,  supei-vision 
and  control  of  all  public  highways,  bridges, 
streets,  alleys,  public  squares  and  grounds, 
and  parks  and  sewers,  and  all  other  public 
improvements  and  public  property  within  the 
limits  of  said  city."  The  al^le  counsel  for  the 
defendant  seems  to  rely  with  confidence  on 
this  as  giving  authority  to  the  common  coun- 
cil to  pass  the  ordinance  in  question.  He 
says:  "Statutoiy  provisions  of  this  kind  have 
uniformly  been  held  to  confer  upon  city  coim- 
cils  authority  to  grant  the  railway  companies 
the  right  to  occupy  public  streets;  at  least,  as 
against  the  city  and  the  public."  We  have 
examined  all  the  authorities  cited  by  counsel, 
and  submit,  with  all  deference  to  him,  that 
none  of  them  support  his  contention.  Some 
of  these  cases  merely  hold  that  a  certain  use 
of  a  street,  as  by  erecting  telephone  poles  and 
wires,  or  constracting  a  horse  railroad,  is  a 
proper  "street  use."  and  imposes  no  addition- 
al servitude  on  the  street;  while  others  are 
merely  to  the  effect  that,  under  a  general 
grant  of  power  to  regulate  the  use  of  streets, 
the  city  council  has  the  power  to  prescribe  the 
manner  in  which,  or  the  conditions  upon 
■which,  streets  may  be  occupied  for  a  legiti- 
mate "street  use."  In  Gregsten  v.  City  of 
Chicago,  145  111:  4.51,  34  N.  E.  42G,  the  city 
had  an  express  grant  of  authority  to  do  what 
it  did.  In  St.  Louis  v,  W.  U.  Tel.  Co.,  149 
U.  S.  405,  13  Sup.  Ct.  990,  the  only  thing  de- 
cided was  that  the  city  was  authorized  by  the 
constitution  and  laws  of  Missouri  to  impose 
upon  a  telegraph  company  putting  its  poles 
in  the  streets  of  the  city  a  charge  in  the  na- 
ture of  rental  for  the  use  of  the  streets  for 
that  purpose.  Neither  party  was  in  position 
to  question  the  authority  of  the  city  to  per- 
mit the  company  to  pLnce  its  poles  in  the 
streets,  for  it  was  by  virtue  of  the  exercise  of 


this  power  that  the  city  claimed  the  right  to 
make  the  charge,  and  the  permit  granted  by 
the  city  in  the  exercise  of  this  assumed  power 
constituted  the  only  right  on  part  of  the 
comiwiny  to  put  its  poles  in  the  street.  We 
are  of  the  opinion  that  the  "care,  supervision, 
and  control"  of  streets  and  public  grounds, 
and  tlie  power  to  regulate  their  use,  which 
is  the  usual  and  ordinary  grant  of  power  to 
municipal  coi-porations,  and  which  is  certain- 
ly as  broad  as  the  power  granted  by  the 
section  above  quoted,  is  not  sufficient  to  em- 
power them  to  authorize  the  use  of  such 
grounds  for  the  pui"pose  even  of  constructing 
and  operating  thereon  a  commercial  railway, 
much  less  of  erecting  thereon  depots,  freight 
houses,  or  other  buildings  which  exclude  the 
general  public  from  the  concurrent  use  of  a 
part  of  the  street  or  other  public  ground.  / 
Dill.  ]Mun.  Coi-p.  §  705,  and  cases  cited;  Lack- 
land V.  Railway  Co.,  31  Mo.  180.  In  this  l 
state  these  would  not  be  proper  "street  uses," 
but  the  imposition  of  an  additional  servitude 
upon  the  street.  Section  8  of  the  same  sub-  I 
chapter  of  the  city  charter  gives  the  common 
council  power  to  vacate  and  discontinue  pub- 
lic gromids,  etc.,  upon  certain  conditions,  but 
it  will  not  be  claimed  that  this  section  has 
any  application  to  the  case  in  hand. 

The  only  other  provision  relating  to  the 
power  of  the  common  council  in  the  premises 
is  section  11  of  the  same  subchapter,  which 
reads  as  follows:  "The  common  council  shall 
have  power  and  authority  by  a  vote  of  three 
fourths  of  all  the  members  elect  of  said  coun- 
cil to  grant  the  right  of  way  upon,  over  and 
through  any  of  the  public  streets,  highways, 
alleys,  public  grounds  or  levees  of  said  city 
to  any  steam  railway  or  horse  railway  com- 
pany or  corporation  upon  such  limitations  or 
conditions  as  they  may  prescribe  by  oitii- 
nance."  We  may  consider  this  in  connection 
with  Gen.  St.  1878,  c.  S4,  §  47  (Gen.  St.  1894, 
§  2042),  cited  by  counsel  for  defendant,  and 
which  reads  as  follows:  "If  it  became  nec- 
essary in  the  location  of  any  part  of  a  rail- 
road to  occupy  any  road,  street,  alley  or  pub- 
lic way  or  any  part  thereof,  it  shall  be  com- 
petent for  the  municipal  or  other  coriwration 
or  public  officer  or  public  authorities  owning 
or  having  charge  thereof,  and  the  railroad 
company  to  agree  upon  the  manner  and  upon 
the  terms  and  conditions  upon  which  the 
same  may  be  used  or  occupied;  or  such  com- 
pany may  appropriate  so  much  of  the  same  as 
may  be  necessary  for  the  pm'poses  of  said 
road  in  the  same  manner  and  upon  the  same 
terms  as  is  herein  provided  for  the  appropria- 
tion of  the  property  of  individuals."  Section 
11  of  the  chapter  (pioted  above  clearly  refers 
only  to  "trackage";  that  is,  to  the  right  to 
construct  and  operate  railroad  tracks  on  the 
streets  or  other  public  grounds.  This  is  con- 
clusively sliown  by  the  term  "right  of  way." 
It  does  not  give  the  common  council  any  au- 
thority to  barter  away,  or  transfer  to  a  rail- 
road company,  the  right  to  use  any  part  of 
the  sU-eets  or  public  grounds  as  a  site  for  de- 


MUNICIPAL  CONTROL  OF  STREETS. 


281 


pots  or  freight  houses,  to  the  entire  exclusion 
of  the  public  therefi-om.  This  seems  to  us 
too  plain  to  require  argument  It  also  seems 
to  us  that  the  provision  of  the  General  Stat- 
utes cited  is  subject  to  the  same  limitation. 
The  phrase,  "in  the  location  of  any  part  of 
a  railroad,"  clearly  indicates  to  our  miuds 
that  this  also  refers  only  to  "trackage,"  and 
that  it  is  but  the  countoi-part  and  equivalent 
of  section  11  of  the  city  charter.  It  was 
never  intended  to  authorize  municipal  authori- 
ties to  sell  or  give  away  to  railroad  com- 
panies, as  sites  for  depots  and  other  buildings, 
lauds  in  which  they  had  no  proprietary  in- 
terest, and  which  they  held  merely  as  trus- 
tees for  the  public.  Any  such  power  would 
(  be  an  exceedingly  dangerous  one  to  vest  in 
municipal  authorities,  and  it  W'ould  require 
yerj'  clear  language  to  that  effect  to  warrant 
a  court  in  holding  that  the  legislatm-e  intend- 
ed to  grant  ihem  any  such  power.  Whether 
the  authority  of  railway  coii^orations  to  ac- 
quire riglits  in  streets  and  other  public  lands 
by  the  exercise  of  the  right  of  eminent  do- 
main is  limited  to  "trackage"  or  "right  of 
■way,"  it  is  not  necessary  now  to  consider. 
If  there  is  any  other  provision  of  statute  con- 
taining any  grant  of  power  to  the  common 
council  of  St.  Paul  over  public  grounds  with- 
in its  limits,  our  attention  has  not  been  call- 
ed to  it  by  counsel,  neither  have  we  found  it. 
Nowhere  do  we  find  any  grant  of  power  au- 
thorizing the  comiuon  cpuncil  to  give  the  de- 
fendant the  right  to  use  and  occui^y  any  part 
of  the  public  levee  as  a  site  for  its  freight 
house.  It  follows  that  this  ordinance  is  inval- 
id because  not  within  the  granted  powers  of 
the  common  council. 

We  have  not  overlooked  the  difference  be- 
tween a  "street"  and  a  "levee."  A  street  is 
designed  exclusively  for  the  purposes  of  trav- 
el and  intercommunication.  The  word  "lev- 
ee," as  iLsod  in  the  West  and  South,  means  a 
landing  place  for  vessels,  and  for  the  delivei-y 
of  merchandise  to  and  from  such  vessels,  and, 


as  incident  to  that,  for  the  temporary  storage 
of  the  merchandise.  Hence,  some  things 
might  be  a  proper  use  of  a  public  levee  which 
would  constitute  a  misuser  of  a  street.  For 
example,  the  erection  and  maintenance  of  a 
warehouse  as  a  place  for  the  receipt  and  de- 
livery and  temporary  storage  of  goods  Avhile 
in  transit  would  probably  be  a  proper  use  of 
a  levee,  provided  it  was  open  to  the  common 
use  of  all  on  the  same  terms.  This  would  be 
in  aid  of  and  necessaiy  to  the  main  object 
for  which  a  levee  is  designed.  But  this  is  a 
very  different  thing  from  giving  to  a  particu- 
lar person  or  corporation  the  right  to  occupy 
a  levee  as  a  site  for  its  warehouse  solely  for 
its  own  business,  and  to  the  exclusion  of  the 
general  public,  as  was  attempted  by  the  or- 
dinance in  question.  The  fact  that  the  com- 
mon council  stipulated  that  a  small  pai't  of 
the  sti-ucture  might  be  used  by  the  public  for 
wharfage  and  transfer  pm-poses  does  not  al- 
ter the  case. 

It  can  hardly  be  necessary  to  say  that  the 
fact  that  the  defendant  may  have  expended 
its  money  on  the  faith  of  this  ordinance  cre- 
ates no  equitable  estoppel  against  the  public,  ' 
whose  mere  trustee  the  city  is  in  prosecuting 
this  suit.     The  defendant  was  bound  to  take  • 
notice  of  the  extent  of  the  powers  of  the  com-  , 
mon  council  from  which  it  obtained  the  or- 
dinance.   The  result  is  that  the  former  deci- 
sion is  adhered  to,  although,  as  to  the  point 
now  considered,  upon  a  different  ground. 

(Jan.  20,  1896.) 
It  appearing  from  the  petition  of  the  defend- 
ant that  its  counsel  overlooked  and  failed  to 
call  the  attention  of  the  court  to  Gen.  St. 
1894,  §  2G80,  it  is  ordered  that  further  argu- 
ment be  allowed,  but  only  as  to  the  force  and 
effect  of  said  section,  the  same  to  be  submit- 
ted on  printed  briefs  either  on  or  before  the 
last  day  of  the  present  term,  or  on  the  first 
day  of  tlie  next  term  of  this  com-t,  at  the  elec- 
tion of  counsel  for  the  plaintiff. 


282 


STREETS    AXD    BRIDGES. 


CITY  OF  DETROIT  v.  FT.  WAYNE  &  E. 
RY.  CO. 

(51  N.  W.  688,  90  Mich.  646.) 

Supreme  Court  of  Michigan.     March  18,  1892. 

Mandamus,  on  the  relation  of  the  city  of 
Detroit,  to  the  Fort  Wayne  &  Elmwood  Rail- 
way Company,  to  compel  respondent  to  make 
alterations  in  its  tracks.     Writ  granted. 

John  J.  Speed,  for  relator.  Edwin  F.  Cone- 
ly,  for  respondent. 

McGRATH,  J.  This  is  an  application  for 
mandamus  to  compel  respondent,  a  street- 
railway  company,  to  observe  the  order  of  the 
common  council  of  the  city  of  Detroit  as  to 
the  removal  of  the  projecting  ends  of  the 
ties  upon  which  its  tracks  are  laid,  on  Cham- 
plain  street,  between  Rivard  and  Randolph 
streets. 

The  petition  sets  forth  that  it  has  let  a  con- 
tract for  the  repavement  of  Champlain  sti-eet, 
said  pavement  to  rest  upon  a  concrete  foun- 
dation. That  the  tracks  of  said  railway  are 
laid  upon  wooden  ties,  which  extend  a.  dis- 
tance of  three  and  one-half  inches  into  the 
street  on  each  side  beyond  the  line  of  its 
tracks.  That  upon  these  ties  are  placed 
sti'iugers  about  eight  inches  square.  That 
the  stringers  are  kept  in  place  by  iron  brack- 
ets, which  are  placed  outside  of  the  string- 
ers, and  fastened  to  both  tie  and  stringer. 
That  the  ties  are  laid  upon  sand  and  are 
tamped  with  sand  and  gravel.  That  the  oth- 
er street  railways  in  said  city  (except  the 
road  on  Fort  street  east,  which  is  a  new 
road)  construct  their  railways  with  a  bracket 
which  extends  outside  of  the  stringer  only 
one  inch,  and  the  tie  is  cut  off  so  it  does  not 
extend  bej'ond  the  stringer  more  than  that 
distance.  The  bracket  of  the  Ft.  Wayne  & 
Elmwood  Railway  Company  extends  outside 
of  the  stringer  a  distance  of  about  three 
inches.  On  the  Fort  Street  East  Railway, 
owned  and  operated  by  respondent,  the 
bracket  does  not  extend  outside  the  stringer 
at  all,  and  the  stringers  are  tied  together  by 
an  iron  rod,  and  this  is  an  appropriate  and 
suitable  method  of  construction,  and  one 
which  is  essential  where  concrete  is  used  as 
a  foundation  for  pavement.  That,  if  the  con- 
struction adopted  by  the  Ft.  Wayne  &  Elm- 
wood Railway  is  maintained,  the  water  pass- 
ing through  the  cobble-stone  pavement  which 
is  laid  between  the  rails  will  pass  down  and 
settle  under  the  ties,  making  the  foundation 
soft,  and  tlie  constant  vibration  of  the  ties 
and  stringers  caused  by  the  cars  passing  over 
the  rails  will  break  the  bond  of  the  concrete, 
Avhich  is  laid  around  and  over  the  projecting 
ties,  and  injure  or  destroy  the  pavement 
above  and  about  it.  That  at  a  session  of  the 
commuu  council  held  on  the  24th  of  Novem- 
ber, 1891,  said  council  adopted  a  resolution 
as  follows-  "Resolved,  that  the  Fort  Wayne 
&  Elmwood  Street-Railway  Company  be,  and 
they  are  hereby,  directed  to  cause  to  be  re- 
moved so  much  of  the  railway  ties  of  their 


railroad  on  Champlain  street,  between  Ran- 
dolph and  Rivard  street,  as  are  outside  of  the 
stringers  on  which  their  rails  are  placed,  in 
order  that  the  street  may  be  paved  with  a 
concrete  foundation;  it  being  the  judgment 
of  this  council  and  the  board  of  public  works 
that,  if  the  ties  are  not  removed,  the  passage 
of  the  cars  will,  by  their  vibration,  injure  the 
concrete.  The  city  clerk  will  transmit  a 
copy  of  this  resolution  to  the  Ft.  Wayne  & 
Elmwood  Street-Railway  Company."  That 
the  respondent,  through  its  attorney,  in  a 
communication  addressed  to  the  common 
council,  declined  to  comply  with  the  direc- 
tion of  the  council. 

The  respondent  sets  up  that,  in  pursuance 
and  under  the  authority  of  the  ordinances 
set  forth,  the  respondent  constructed,  in  the 
summer  of  1890,  the  portion  of  its  street  rail- 
way on  Champlain  street,  between  Randolph 
street  and  Mt.  Elliott  avenue,  under  the  su- 
pervision of  and  in  the  manner  approved  by 
the  then  board  of  public  works  of  the  city  of 
Detroit,  and  in  every  i-espect  in  full  compli- 
ance with  the  terms  and  conditions  and 
agreements  of  the  ordinances  above  men- 
tioned. That,  during  the  year  1891,  the  com- 
mon council  directed  the  repaving  of  Cham- 
plain street  from  Randolph  sti-eet  to  Rivai'd 
street  with  brick,  on  a  sort  of  concrete  foim- 
dation,  similar  to  the  pavement  on  Griswold 
street  in  front  of  the  United  States  post-office, 
and  at  the  crossing  of  the  respondent's  street 
railway  on  said  street.  During  the  same 
year  the  common  council  directed  the  paving 
of  Champlain  street  from  Elmwood  avenue  to 
Mt.  Elliott  avenue  with  like  pavement.  In 
preparing  for  such  paving  and  repaving,  the 
board  of  public  works  fixed  a  grade  on  Cham- 
plain street  whereby  the  street  was  raised  in 
some  places,  and  lowered  in  others,  thereby 
necessitating  a  change  in  the  existing  grade 
of  the  respondent's  street  railway.  There- 
upon the  respondent  was  notified  by  the  board 
of  public  works  to  change  the  grade  of  its 
street  railway  so  as  to  conform  to  the  grade 
established  by  said  board.  The  respondent, 
in  compliance  with  the  demand  of  said  board, 
proceeded  to  change  the  grade  of  its  street 
railway  on  Champlain  street,  and  on  the  por- 
tion to  be  repaved  has  aU  of  the  grade  chan- 
ged as  and  so  fai'  as  ordered.  In  order  to 
have  a  suitable  and  secure  foundation,  it  is 
absolutely  necessary  that  the  stringers  should 
be  held  firmly  in  place,  without  the  possibil- 
ity of  spreading  and  with  the  least  possibil- 
ity of  vibration.  To  accomplish  this  result 
or  end,  the  stringer  rests  in  strong  iron 
brackets  securely  fastened  to  the  ties  below, 
thus  making  a  solid  foundation.  The  stabil- 
ity and  solidity  of  the  road  depend  almost, 
if  not  wholly,  upon  the  strength  and  security 
with  which  the  bracket  is  fastened  to  the  tie 
below,  and  in  practical  experience  it  has  been 
found  necessary  to  have  the  end  of  the  tie 
project  beyond  the  outside  of  the  stringer  on 
which  the  rail  is  fastened  sufficiently  to  ad- 
mit of  the  fastening  of  the  bracket  to  the  ti« 


MUNICIPAL  CONTROL  OF  STREETS. 


283- 


by  means  of  a  spike  driven  through  the  out- 
side foot  of  the  bracket;  that  other  forms  of 
brackets  are  in  use  in  the  city  of  Detroit; 
that  its  form  of  bracket  is  of  an  approved 
pattern  on  horse  railways;  that  It  is  an  es- 
sential part  of  the  foundation,  and,  if  the  re- 
siiondent  is  required  to  make  the  change  de- 
manded, it  may  be  compelled  to  change  the 
foundation  of  its  street  railway  throughout 
the  entire  length,  thereby  subjecting  it  to 
great  unnecessary  expense  and  great  incon- 
venience, if  not  irreparable  loss  and  damage, 
in  weakening  the  foundation  of  its  railway, 
as  the  stringers  cannot  be  properly  brac-ed  in 
the  manner  above  described,  or  by  an  equiv- 
alent bracket.  The  feet  of  the  bracket  are 
its  lateral  support,  and  are  about  nine  inches 
below  the  surface,  thus  giving  ample  room 
for  paving  over  them.  The  ends  of  the  ties 
project  beyond  the  toe  of  the  bracket  from 
two  to  four  inches.  The  ties  on  the  portion 
of  the  street  railway  in  question  are  of  the 
usual  length,  and  are  such  as  are  in  common 
use  on  street  railways.  So  much  of  the  tie 
as  projects  beyond  the  toe  of  the  bracket  the 
respondent  has  offered  to  saw  off  at  its  own 
expense,  and  on  the  portion  of  Champlain 
street  newly  paved  this  course  has  been  pur- 
sued under  an  agreement  between  the  board 
of  public  works  and  respondent.  That  the 
common  council  of  the  city  of  Detroit  has 
never  adopted  an  ordinance  governing  or  reg- 
ulating the  matters  in  question,  nor  has  it  in 
any  other  manner  established  any  uniform  rule 
governing,  regulating,  or  treating  all  persons 
affected  alike.  The  respondent  denies  that 
the  other  street  railways  in  the  city  of  De- 
troit constructed  their  railways  (with  the  ex- 
ception of  Fort  street  east)  with  a  bracket 
■which  extends  outside  of  the  stringer  only 
one  inch.  The  fact  is  that  all  of  the  brackets 
above  described  are  in  use  on  the  various 
street  railways  of  the  city.  There  is  another 
form  of  bracket  in  use  which  has  no  project- 
ing foot  beyond  the  outside  of  the  brace,  but 
this  form  of  bracket  requires  a  spike  through 
it  midway  between  its  two  braces,  or  through 
the  bottom  and  center  of  it,  so  to  speak, 
vrhich  spike  is  completely  covered  up  by  the 
stringer  when  in  position.  The  result  of  this 
is  that,  when  a  tie  becomes  decayed  and 
should  theiefore  be  removed,  that  portion  of 
the  road  and  foundation  has  to  be  completely 
torn  up  in  order  to  replace  the  tie,  whereas, 
with  the  present  bracket,  it  is  only  necessary 
to  slide  it  along  the  stringer  by  tapping  it, 
thus  uncovering  the  tie  and  admitting  of  its 
removal  without  a  serious  disturbance  of  the 
foundation  of  the  road.  This  bracket,  how- 
ever, is  not  nearly  as  good  as  any  of  the  oth- 
er brackets  above  described,  and  for  a  heavier 
track  and  a  different  motive  power  would  be 
insutticient.  The  respondent  denies  that  the 
concrete  in  the  pavement  before  mentioned 
will  be  injured  by  the  vibration  of  the  ties  as 
claimed,  and  that  the  danger  thereof  is  im- 
aglnai-y.  The  respondent  alleges  and  char- 
ges the  truth  to  be  that,  if  the  pavement  is 


properly  constructed,  there  will  be  no  vibra- 
tion from  any  such  cause,  and  that  the  con- 
crete will  be  entirely  secure  from  disturb- 
ance in  such  manner.  The  respondent  denies 
that,  if  the  construction  adopted  by  it  is 
maintained,  the  water  passing  through  the 
cobble-stone  pavement  will  pass  down  to 
and  settle  under  the  ties,  thereby  making  the 
foundation  soft.  The  respondent  therefore- 
submits:  (a)  That  the  board  of  public  works 
had  no  authority  to  order  the  respondent  to- 
make  the  changes  demanded;  (b)  that  the 
common  council  has  no  authority  to  make- 
such  demand;  (c)  that  the  resolution  of  the 
common  council  was  without  legal  force;  (d) 
that,  if  the  common  council  has  any  author- 
ity in  the  premises,  the  same  can  be  exerted 
only  through  an  appropriate  exercise  of  its 
legislative  power  by  ordinance,  and  that  such' 
ordinance,  if  it  can  be  lawfully  adopted,  must 
be  reasonable  and  uniform. 

The  following  are  extracts  from  the  ordi- 
nances granting  to  respondent  its  franchise, 
and  governing  its  operation:  "The  track  of 
said  railway  shall  be  laid  of  such  rails  as  are 
now  laid  in  A^'oodward  avenue,  and  as  shall 
least  obstruct  the  free  passage  of  vehicles  or 
carriages  over  the  same;  and  the  upper  sxu-- 
face  of  the  rails  shall  be  laid  flush  with  the 
surface  of  the  streets,  and  shall  conform  tcr 
the  grades  thereof  as  now  established,  or  as 
they  shall,  from  time  to  time,  be  established 
or  altered;  and,  in  case  of  grading,  paving,  or 
otherwise,  if  it  be  necessarj'  to  relay  said  rails, 
the  same  shall  be  done  at  the  expense  of  the 
grantees;  and  in  all  streets,  or  parts  of  streets, 
which  are  not  paved,  the  rails  shall  be  laid  in 
such  manner  as  shall  least  interfere  with  the 
public  travel  thereon,  and  as  shall  be  author- 
ized and  approved  by  the  city  engineer.  It  is 
hereby  reserved  to  the  common  council  of  the 
city  of  Detroit  the  right  to  make  such  further 
rules,  orders,  or  regulations  as  may,  from  time 
to  time,  be  deemed  necessary  to  protect  the 
interest,  safety,  welfare,  or  accommodation  of 
the  public  in  relation  to  said  railways.  The 
rails  of  said  street  railway  shall  be  laid  on  a 
foundation  equal  to  that  of  Woodward  avenue 
or  any  other  first-class  railroad.  On  and  after 
the  date  upon  which  this  ordinance  shall  take 
effect,  whenever  any  of  the  streets  through 
which  the  line  of  said  railway  is  or  may  be  laid 
shall  be  hereafter  orderefl  to  be  paved,  re- 
paved,  or  repaired,  said  company  shall  furnish 
all  material  and  bear  the  entire  expense  of  ex- 
cavating, grading,  paving,  repaving,  and  re- 
pairing that  portion  of  the  street  which  lies- 
between  the  outer  rails  of  tlieir  tracks,  includ- 
ing the  space  between  all  double  tracks  and 
switches,  the  said  company  shall  at  all  time* 
keep  the  same  clear  and  in  good  order  and  con- 
dition; but  said  company  shall  have  the  right, 
for  the  purpose  of  paving,  repaving,  or  repair- 
ing said  space,  to  use  either  cedar  blocks  or 
cobble-stone,  or  some  other  similar,  durable, 
and  proper  material,  such  latter  material  to 
be  subject  to  the  approval  of  the  common  coun- 
cil, and  all  cobble-stones  or  other  material  now 


284 


STREETS    AND    BRIDGES. 


constituting   the  roadway   between   the   said 
tracks  of  the  company  shall  belong  to  said  com- 
pany, while  used  for  the  purposes  of  paving, 
repaying,  and  repairing,  in  the  place  or  places 
where  such  cobble-stones  or  other  material  are 
not  or  hereafter  may  be  for  the  first  time  laid 
or  placed." 
The  street-railway  act  provides  (How.  St.  § 
'  Sooi)  that  "the  common  council  or  other  cor- 
.  porate   authorities   of   the  city   or   village,   in 
which  any  street  railway  shall  be  located,  may 
j  from  time  to  time,  by  ordinance  or  otherwise, 
establish  and  prescribe  such  rules  and  regu- 
I    latious  in  regard  to  said  railway  as  may  be  re- 
,    quired   for  the   grading,   paving,    and   repair- 
ing the  street,  and  the  construction  of  sewers, 
1   drains,  reservoirs,  and  crossings,  and  the  lay- 
.   kig   of   gas   and   water   pipes   upon,    in,    and 
along  the  streets  traversed  by  such  road,  and 
j   to  prevent  obstructions  thereon."     Highways 
.are  under  public  authority.    Municipalities  are 
j    by  statute  made  liable  for  damages  resulting 
'    from   their  defective   condition.     As   is    said, 
f    "the  right  of  public  supervision  and  control  of 
highways  results  from  the  i>ower  and  duty  of 
providing  and  preserving  them."     The  charter 
of  the  city  of  Detroit  commits  the  regulation, 
supervision,  and  control  of  its  streets  to  the 
common  council.    It  empowers  the  council  to 
Improve  the  same  and  to  determine  the  nature 
and  details  of  such  improvement.     It  gives  to 
the  common  council  the  power  to  control,  pre- 
scribe, and  regulate  the  manner  in  which  the 
streets  shall  be  used  and  enjoyed.    These  pow- 
ers are  held  in  trust  for  the  public   benefit. 
They  cannot  be  surrendered  or  delegated   to 
private  parties.    All  franchises  granted  or  con- 
I    tracts  made  with  reference  to  the  use  of  streets 
must  be  made,   not  only  with  due  regard   to 
'    their  lawful  and  proper  use  by  others,  but  sub- 
ject to  the  exercise  by  the  municipaUty  of  the 
powers  referred  to. 

The  permission  ghren  respondent  to  use  this 
street  is  in  subordination  to  the  general  pow- 
er of  the  municipality  over  its  streets.  The 
city  is  not  under  obligation  to  conform  its 
treatment  of  its  streets  to  the  construction  of 
respondent's  road-bed,  but,  on  the  contrary, 
respondent  must  conform  the  construction  of 
Its  road-bed  to  such  reasonable  regulations  as 
are  made  by  the  municipality  in  the  reasonable 
exercise  of  its  powers  resp(>cting  the  use,  con- 
trol, regulation,  and  improvement  of  its  streets. 
Street  railways  occupy  public  streets  subject 
to  the  use  of  such  streets  by  the  public,  sub- 
ject to  such  burdens  as  may  be  made  necessa- 
ry by  reason  of  the  improvement  of  such 
streets,  and  subject  to  such  changes  in  the  con- 
siru(;tion  of  road-beds  as  imi)roved  and  chan- 
ged conditions  may  demand.  The  statute  re- 
ferred to  empowers  the  council  to  prescribe 
such  rules  and  regulations  regarding  such  rail- 
ways as  may  be  required  for  the  grading  and 
paving  of  the  streets  occupied  by  them.  In  the 
exercise  of  the  power  conferred  by  this  statute, 
as  well  as  the  power  conferred  by  the  charter 
respt'cUng  the  determination  of  the  character 
.of  all  improvements,  the  council  has  the  un- 


doubted authority  to  determine  what  Is  neces- 
sai-y  or  required,  and  whether  any  particular 
method  of  construction  of  respondent's  roadway 
interferes  with  the  durability  or  preservation 
of  the  proposed  pavement,  and  to  prescribe 
such  reasonable  and  practicable  changes  in 
the  mode  of  construction  as,  in  their  judgment, 
will  preserve  and  protect  the  proposed  im- 
provement. In  the  recent  case  of  City  of  Phil- 
adeliihia  v.  Railway  Co.,  22  Atl.  695,  the  su- 
preme court  of  Pennsylvania  says:  "By  whom 
is  the  necessity  for  repairing  or  repaving,  etc., 
to  be  determined?  Certainly  not  by  the  com- 
pany itself,  but  by  the  municipal  authorities. 
As  a  general  rule,  it  is  their  special  province 
to  determine  when  repaving  is  needed,  and 
how  it  shall  be  done,  whether  with  the  same 
kind  of  material  as  before,  or  with  a  different 
and  better  material.  It  was  never  intended  to 
transfer  the  duty  of  determining  these  mat- 
ters, or  either  of  them,  from  the  municipal  au- 
thorities to  any  one  else.  The  proposition  that, 
because  cobble-stone  was  the  kind  of  pavement 
ordinarily  in  use  when  defendant  company 
was  chartered,  it  is,  in  no  event,  bound  to  re- 
pave  with  any  other  and  more  expensive  kind 
of  material,  etc.,  is  wholly  untenable.  It  can- 
not be  entertained  for  a  moment.  It  was  nev- 
er contemplated  that  the  railway  company 
would  continue  to  exist  and  perform  its  corpo- 
rate functions  in  a  cobble-stone  age.  It  was 
called  into  being  with  the  view  of  progress. 
The  duties  specitied  in  its  charter  were  imposed 
with  reference  to  the  changes  and  improved 
methods  of  street  paving  which  experience 
might  sanction  as  superior  to,  and  more  eco- 
nomical than,  old  methods.  In  other  words, 
the  company  is  bound  to  keep  pace  with 
the  progress  of  the  age,  in  which  it  continues 
to  exercise  its  corporate  functions.  The  city 
authorities  have  just  as  much  right  to  re- 
quire it  to  I'epave,  at  its  own  expense,  with  a 
new,  better,  and  more  expensive  kind  of  pave- 
ment, as  they  have  to  cause  other  streets  to  be 
repaved,  in  like  manner,  at  the  public  ex- 
pense." \ 

In  the  present  case  the  common  council  and 
board  of  public  works  have  determined  that 
the  vibration  of  the  projecting  ties,  which  ai'e 
laid  upon  a  sand  foundation,  will  break  the 
bond  of  the  concrete  if  laid  over  and  around 
the  projecting  ends  of  the  ties,  which  it  must 
be  if  the  projecting  ties  are  allowed  to  remain, 
and  thus  the  pavement  will  be  destroyed. 
This  conclusion  does  not  appear  to  be  unrea- 
sonable, but,  on  the  contrary,  the  result  which 
the  coimcil  desires  to  protect  the  pavement 
against  would  seem  to  be  most  natural.  The 
demand  of  the  council  necessitates  the  adop- 
tion, upon  this  section  of  respondent's  road,  of 
some  other  form  of  bracket  or  mode  of  staying 
the  stringers.  It  is  conceded  that  otlier  brack- 
ets are  used  in  the  same  city,  and  other  metho<ls 
are  employed,  which  obviate  the  ditticulty  com- 
plained of.  In  view  of  this  concession,  the  re- 
quirement of  the  common  council  is  not  an  un- 
reasonable one. 

The  objection  that  this  demand  has  not  been 


MUNICIPAL    CO.NTKOL    OF    STREETS. 


285- 


made  of  all  roads,  and  that  it  is  made  by  res- 
olution, Instead  of  by  ordinance,  is  untenable. 
Till'  fact  tliat  it  is  made  of  respondent  as  to 
2,4W  feet  of  its  road,  and  not  as  to  its  entire 
kii.ytli  of  15  miles,  is  a  sufficient  reason  wliy 
it  should  rest  in  resolution,  rather  than  in  or- 
dinance. The  requirement  is  unnecessary 
when  the  street  occupied  is  not  paved,  and 
may  not  be  necessary  as  to  all  kinds  of  pave- 
ment. At  all  events,  the  record  shows  that 
the  changed  construction  is  not  insisted  upon 
where  certain  kinds  of  pavement  are  to  be  laid. 


An  ordinance  could  but  define  the  power  of  the 
council,  or  empower  the  board  of  pubhc  works 
to  make  the  requirement.  The  objection  that 
compliance  therewith  involves  large  expense 
to  respondent  cannot  avail.  The  statute  im- 
poses the  duty  of  observance  of  such  regula- 
tions as  may  be  prescribed  by  the  council,  and 
the  burdensome  character  of  that  duty  does 
not  affect  the-  obligation  to  perform  it.  The 
writ  must  issue  as  prayed,  with  costs  to  re- 
lator. 
The  other  justices  concurred. 


286 


STREETS   AXD    BRIDGES. 


DAVIS  V.  EA.ST  TENNESSEE.  V.  &  G. 
RY.  CO. 

(13  S.  E.  567,  87  Ga.  605.) 

Supreme  Court  of  Geor^a.     July  13,  1891. 

Error  from  superior  court,  Bibb  county; 
A.  L.  Miller,  Judge. 

Action  by  Ellen  Davis  against  the  East 
Tennessee,  Virginia  &  Georgia  Railway  Com- 
pany to  recover  damages.  Judgment  for 
rlefendant.     Plaintiff  brings  error.     Reversed. 

Gustin,  Guei-ry  &  Hall,  for  plaintiff  in  er- 
ror. Bacon  &  Rutherford,  for  defendant  in 
error. 

BLECKLEY,  C.  J.  1.  The  Macon  &  Bruns- 
wick Railroad,  extending  from  Macon  to 
Brunswick,  was  the  property  of  the  state. 
By  virtue  of  certain  acts  passed  in  1879  it 
was  first  leased  and  then  sold  to  a  company 
which  one  of  these  acts  incorporated  by  the 
name  of  the  "Macon  &  Brunswick  Railroad 
Company."  See  Acts  1878-79,  pp.  115-122. 
The  twelfth  section  of  that  act  contains 
these  clauses:  That  the  lessee  company 
which  the  act  provides  for  "shall  have  full 
power  and  authority  to  survey,  lay  out,  con- 
struct, equip,  use,  and  enjoy  a  railroad  from 
the  city  of  Macon  to  the  city  of  Atlanta," 
and  divers  others;  "and  shall  further  have 
power  and  authority  to  connect  said  roads, 
or  either  of  them,  at  each  terminus,  with 
the  roads  of  other  companies  constructed  to 
said  terminus,  or  which  may  hereafter  be 
^constructed  to  the  said  terminus."  The  thir- 
teenth section  requires  the  company  or  the 
lessees  to  "proceed,  within  one  year  or  less 
time  after  the  date  of  the  execution  of  said 
lease,  to  build  and  put  in  good  running  order 
a  railroad  of  hve-feet  guage,  or  the  same 
guage  with  the  Macon  &  Brunswick  Rail- 
road, between  the  city  of  Macon,  in  the  coun- 
ty of  Bibb,  and  the  city  of  Atlanta,  in  the 
county  of  Fulton,  and  finish  the  same  with- 
in five  years  from  the  execution  of  said  lease; 
with  the  right  to  unite  their  tracks  with  the 
tracks  of  the  roads  now  built  or  that  may 
hereafter  be  built  into  said  cities,  by  which 
cars  may  be  transferred,  without  breaking 
bulk  or  detention,  from  road  to  road,  at 
said  cities."  The  evidence  in  the  record  in- 
dicates that  the  railroad  from  Macon  to  At- 
lanta was  constructed  by  the  Macon  & 
Brunswick  Railroad  Company  under  and  by 
virtue  of  these  statutory  provisions,  and 
that,  with  the  consent  of  the  municipal  gov- 
ernment of  the  city  of  Macon,  a  part  of  the 
line  was  located  and  constructed  along 
Wharf  street,  one  of  the  public  streets  of 
the  city.  This  occupation  of  the  street  was 
in  pursuance  of  a  contract  between  the  com- 
pany and  the  city  authorities,  by  which  the 
company  agreed  to  pay  to  the  city  .$2,000 
per  annum  for  the  privilege;  and  this  pay- 
ment has  been  regularly  made  fi'om  year  to 
year.  The  main  line  along  the  street  had 
already  been  constructed  and  was  in  use 
when  the  plaintiff,  Mrs.  Davis,  in  1884,  pur- 


chased two  city  lots  abutting  on  the  street. 
These  lots  she  improved  by  erecting  upon 
them  a  dwelling  house  and  a  blacksmith, 
carriage,  and  paint  shop,  afterwards  used 
for  carrying  on  a  carriage  and  wagon  manu- 
facturing and  repairing  business.  The  evi- 
dence indicates  that,  after  the  plaintiff  pur- 
chased, and  her  occupancy  commenced,  the 
main  track  was  removed  from  its  original 
position,  and  placed  several  feet  nearer  to 
her  property;  and  also  that  a  second  side 
track  was  constructed  in  front  of  her  prem- 
ises. The  defendant  is  the  successor  of  the 
Macon  &,  Brunswick  Railroad  Company,  and 
has  all  its  rights  and  privileges,  including  the 
right,  if  any,  to  occupy  and  use  the  street 
in  question  as  a  location  for  its  line  of  rail- 
way. The  first  question  is  whether  its  oc-  \ 
cupation  of  this  street  is  lawful  or  unlawful.  J 
It  was  settled  by  the  decision  of  this  court 
in  the  case  of  Daly  v.  Railroad  Co.,  80  Ga.  I 
793,  7  S.  E.  146,  that  power  to  authorize  the 
public  streets  of  the  city  of  Macon  to  be  | 
occupied  and  used  as  the  route  of  a  steam 
railway  resides  exclusively  in  the  legislature 
of  the  state,  and  that  the  municipal  govern-  I 
meut  is  without  authority  to  grant  such  a  J 
privilege  to  a  railway  company.  No  ex-  i 
press  grant  by  the  legislature  to  the  defend- 
ant or  to  any  of  its  predecessors  has  been 
produced.  The  Code  declares  in-section  719: ' 
"Public  highways,  bridges,  or  ferries  cannot  • 
be  appropriated  to  railroads,  plankroads,  or 
any  other  species  of  road,  unless  express  au- 
thority is  granted  by  some  constitutional  ' 
provision  of  their  charter."  Highways,  in  i 
the  broad  sense,  include  streets.  Elliott, 
Roads  &  St.  1,  2,  12,  13;  1  Abb.  Law  Diet. 
562;  1  Bouv.  Law  Diet.  750;  2  Bouv.  Law 
Diet.  672;  And.  Law  Diet.  981:  9  Am.  &  Eng. 
Enc.  Law,  362.  This  section  of  the  Code 
had  its  origin  in  the  Code  of  1863,  and  was 
of  force  when  the  above  quoted  legislation 
was  enacted  in  1879.  Construing  it  as  ap- 
plying to  streets  as  well  as  to  public  roads  in 
the  country,  it  would  be  decisive  against 
any  implied  grant  of  authority  to  build  a 
railroad  along  Wharf  street  in  the  city  of 
Macon,  however  strong  any  implication  of 
such  authority  might  be.  This  court,  in 
Railroad  Co.  v.  Mann,  43  Ga.  200,  appeal's 
to  have  treated  the  matter  of  the  section 
as  probably  applying  to  the  streets  of  a 
town;  but,  without  ruling  definitely  on  this 
question,  we  can  rest  our  decision  in  the 
present  case  on  the  general  doctrine  that  no 
authority  not  granted  in  express  terms  would 
exist  unless  it  arose  by  necessary  implica- 
tion. "Though  'the  grant  of  land  for  one 
public  use  must  yield  to  that  of  another  more 
urgent,'  and  though  'every  grant  of  power  is 
intended  to  be  efficacious  and  beneficial,  and 
to  accomplish  its  declared  object,  and  carries 
with  it  such  incidental  powers  as  are  requi- 
site to  its  exercise.'  yet  'when  it  is  the  in- 
tention of  the  legislature  to  grant  a  power 
to  take  land  already  appropriated  to  an- 
other  i^ublie   use,    such   intention   must    be 


MUNICIPAL   CONTROL   OF    STREETS. 


287 


shown  by  express  words,  or  by  necessary 
implication.'  Therefore  the  mere  j?i'aut  of 
a  charter  riglit  to  build  a  railroad  between 
two  points  does  not  carry  with  it,  by  neces- 
sary implication,  the  right  to  occupy  longi- 
tudinally a  highway  lying  in  the  general 
route  contemplated,  unless  the  topography 
of  the  ground  be  such  (as,  for  instance,  the 
notch  of  the  White  mountains)  as  to  physic- 
ally preclude  a  location,  by  reasonable  in- 
tendment, to  have  been  designed  on  any  oth- 
er line."  Ror.  R.  R.  502.  See,  also,  Daly 
/  V.  Railroad  Co.,  supra.  Nothing  appears  on 
the  face  of  the  legislation  itself,  nor  from 
I  anj'  evidence  in  the  record  before  us,  tend- 
'  ing  to  show  that  it  would  be  necessary  to  use 
any  public  street  in  order  to  construct  a 
.  railroad  from  the  city  of  Macon  to  the  city 
1  of  Atlanta;  or  to  connect  it  with  any  other 
.  road  at  Macon,  including  the  road  from  Ma- 
I  con  to  Brunswick;  or  to  unite  its  tracks 
with  that  and  other  roads  terminating  in 
j  said  city,  so  that  oars  could  be  transferred 
from  road  to  road,  without  detention  or 
I  breaking  bulk.  That  to  accomplish  these 
•  objects  some,  and  perhaps  many,  of  the 
streets  would  have  to  be  crossed,  is  a  neces- 
sary implication;  and  the  presence  of  that 
serves  to  furnish  a  good  example  of  what 
a  necessary  implication  is.  Authority  to  run 
a  railroad  through  a  city  involves  in  its 
terms  the  privilege  of  crossing  the  streets, 
but  not  of  occupying  them  longitudinally. 
The  act  of  ISoO  conferred  upon  the  Central 
Railroad  and  the  Macon  &  Western  Railroad 
authority  to  unite  their  tracks  in  one  com- 
mon depot  within  the  city  of  Macon;  but, 
as  construed  by  this  court  in  Daly's  Case,  su- 
pra, the  act  did  not  by  implication  grant 
any  right  of  using  the  public  streets  for  the 
purpose.  Indeed,  nothing  is  more  manifest 
than  that,  iinder  ordinary  conditions,  roads 
may  pass  through  cities  and  make  connec- 
tions, one  line  with  another,  without  appro- 
priating to  themselves  any  of  the  streets 
used  by  the  public.  The  only  necessary  en- 
croachments upon  the  streets  would  be  to 
cross  and  recross  them;  sometimes  at  one 
angle,  and  sometimes  at  another.  When  it 
is  the  Intention  of  the  legislature  to  allow 
steam  railways  to  occupy  or  appropriate  the 
public  streets  or  highways,  it  is  easy  to  say 
so;  and  where  the  intention  is  left  the  least 
■doubtful,  the  doubt  must  be  given  in  favor 
of  the  general  public  and  against  the  rail- 
way corporation.  There  is  always  a  strong 
presumiition  that  public  property,  or  prop- 
erty already  devoted  to  public  use,  is  intend- 
ed to  remain  intact,  and  not  be  converted,  in 
\  whole  or  in  part,  to  another  public  use.  May- 
or of  Atlanta  v.  Railroad,  etc.,  Co.,  53  Ga. 
120.  The  case  of  Wood  v.  Railroad  Co.,  G8 
Ga.  539,  involved  no  question  as  to  the  ap- 
propriation of  highways  or  streets.  It  con- 
cerned the  location  of  the  x-ailway  along  the 
river  bank,  through  a  plat  of  ground  to 
which  the  city  had  title,  and  which  the  city, 
not  the  state,  had  dedicated  to  public  use  as 


a  cemetery.  The  ruling  of  this  court  was 
that  the  city,  without  express  authority  from 
the  legislature,  could  devote  a  part  of  the 
ground  not  actually  used  for  burial,  nor 
adapted  to  that  use,  to  another  public  pur- 
pose, to  wit,  the  location  of  the  track  and 
road-way  of  this  railroad.  The  court  also 
held,  in  effect,  that,  construing  the  legisla- 
tion which  we  have  quoted  above  in  the 
light  of  the  special  facts  disclosed  in  the  rec- 
ord of  that  case,  that  legislation  conferred 
the  requisite  authority  by  necessary  implica- 
tion, so  far  as  any  authority  was  needed 
from  the  legislature.  The  title  to  the  public 
streets  of  Macon  is  not  in  the  city,  but  in 
the  state;  the  state,  not  the  city,  has  dedi- 
cated them  to  public  use;  and  that  part  of 
Wharf  street  now  in  question  was,  it  may  be 
assumed,  in  actual  use  by  the  public  as  a 
highway  both  in  1879,  when  this  legislation 
took  place,  and  afterwards,  when  the  city 
undertook  to  change  the  original  dedication 
in  part  by  consenting  to  the  occupation  of 
the  street  as  the  route  of  a  steam  railway. 
Had  Wood's  Case  related  to  one  of  the 
streets  of  the  city  instead  of  to  the  river 
margin  of  the  cemetery  grounds,  the  decision 
would  doubtless  have  been  different.  In- 
deed, it  must  have  been  different  if  streets 
are  highways  within  the  meaning  and  intent 
of  section  719  of  the  Code.  It  follows  from 
what  we  have  said  that  the  defendant  must 
be  treated  as  occupying  Wharf  street  with 
its  railway  without  legal  authority;  and, 
consequently,  that  the  law  of  nuisance,  and 
not  the  law  of  assessment  for  property  taken 
or  damaged  by  the  exercise  of  the  right  of 
eminent  domain,  applies  between  the  parties 
in  the  present  controversy. 

2.  The  scope  of  the  plaintiffs  action  em- 
braces two  classes  of  damage,— damage  to 
the  corpus  or  freehold,  and  damage  by  di- 
minishing the  annual  value  of  the  premises 
for  use.  The  evidence  shows  very  conclu- 
sively that  the  market  value  of  the  proper- 
ty -was  increased,  rather  than  diminished,  by 
the  location  and  use  of  the  railroad  in  the 
street.  The  plaintiff  can  recover  nothing  on 
that  score,  for  the  reason,  if  for  no  other, 
that  she  proved  no  damage  of  that  class. 
But  the  evidence  did  tend  to  show  that  she 
had  sustained  damage  by  the  diminished  an- 
nual value  of  the  premises  for  use  in  their 
present  condition.  The  court,  in  its  charge 
to  the  jury,  seems  not  to  have  recognized  this 
element  as  a  basis  for  recovery.  We  think 
this  was  eri-or.  A  wrong-doer  cannot  set 
off  increase  of  market  value,  caused  by  his 
unlawful  act,  against  loss  of  rents  and  prof- 
its occasioned  thereby.  Marcy  v.  Fries,  18 
Kan.  353;  Francis  v.  Schoollkopf,  53  N.  Y. 
153;  Gerrish  v.  Manufacturing  Co.,  30  N.  IL 
478.  Injury  to  rental  value  is  or  may  be 
separate  and  distinct  from  injury  to  market 
value.  The  measure  of  damages  in  an  ac- 
tion for  a  nuisance  affecting  real  estate  is 
not  simply  the  depreciation  of  the  property. 
Baltimore    &    P.    R.    Co.    v.    Fifth    Baptist 


288 


STREETS   AND    BRIDGES. 


I  Church,  108  U.  S.  317,  2  Sup.  Ct.  719.      The 
\  owner  of  property  is  entitled  to  use  it  in  its 
I  present  condition,  and  one  who  unlawfully 
I  hinders,  obstructs,   or  interferes  with  such 
use,  cannot  appeal  to  the  increased  market 
value  which  might  be  realized  if  the  proper- 
ty were  devoted  to  other  purposes,  and  take 
credit  for  such  increase  by  way  of  indirect 
set-off     against   the    direct    loss     or    injury 
which  he  has  occasioned.      Nor  would  the 
f  purchase   of  .the   premises   by   the   plaintiff 
after  the  road  was  located  and  constructed 
in  the  street  be  any  reason  why  she  might 
not   recover   damages   of   this   class   which 
she  has  actually  sustained.     Glover  v.  Rail- 
road Co.,  51  N.  Y.  Super.  Ct.  1;   Werfelman 
V,  Railway  Co.  (Com.  PI.)  11  N.  Y.  Supp.  66. 


3.  Under  the  declaration,  as  we  construe 
it,  there  was  no  error  in  excluding  evidence 
"that  the  means  of  ingress  to  and  egress 
from  the  property  of  plaintiff  by  a  street  on 
which  said  property  is  situated  had  been,  by 
the  construction  of  the  railroad  of  defend- 
ant in  said  street,  interfered  with  at  a  point 
200  feet,  and  that  by  reason  of  such  inter- 
ference the  property  of  plaintiff  had  been 
damaged."  This  is  a  somewhat  obscure 
statement  of  what  was  offered  to  be  proved; 
but  if  it  means  what  we  suppose,  namely, 
that  ingress  and  egress  were  impeded  by  an 
obstruction  200  feet  distant  from  the  plain- 
tiff's premises,  the  declaration  seems  to  us 
not  to  cover  it.  The  court  erred  in  not 
granting  a  new  trial.     Judgment  reversed. 


MUNICIPAL  CONTROL  OF  STREETS. 


289 


GREEN  T.  EASTERN  RY.  CO.  OF  MINNE- 
SOTA. 

(53  N.  W.  808,  52  Minn.  79.) 

Supreme  Court  of  Minnesota.     Dec.  27,  1892. 

Appeal  from  district  court,  Anoka  county; 
Canty,  Judge. 

Action  by  JameB  V.  Green  against  the  East- 
ern Railway  Company  of  Minnesota  for  per- 
sonal Injuries.  Judgment  for  plaintiff.  De- 
fendant appeals.     Affirmed. 

M.  D.  Grover,  for  appellant  B.  H.  Am- 
mons,  for  respondent 

DICKINSON,  J.  At  about  half  past  5 
o'clock,  or  a  little  later,  in  the  afternoon  of  the 
17th  of  December,  it  having  then  become  darli, 
the  plaintiff,  in  an  open  buggy  with  a  span  of 
hoi-ses,  drove  north  on  Seventh  avenue  in  the 
city  of  Anoka  towards  the  track  of  the  defend- 
ant, which  crossed  that  street.  As  he  ap- 
proached the  crossing  to  within  about  25  or 
30  feet  of  the  railroad  track  a  passenger  tiuin 
from  the  west  ran  over  the  crossing,  frighten- 
ing the  horses  so  that  they  wheeled  suddenly, 
throwing  the  plaintiff  out  of  his  buggy,  caus- 
ing injuries  for  which  this  action  is  brought. 
Liability  on  the  part  of  the  defendant  is  at- 
tributed to  the  failure  to  give  any  signal  or 
warning  of  the  approach  of  the  train,  including 
the  neglect  of  the  defendant  to  station  a  flag- 
man at  this  crossing.  As  to  the  fact  of  the 
negligence  of  the  defendant  a  case  was  pre- 
sented which  entitled  the  plaintiff  to  go  to  the 
jury.  The  evidence  was  conflicting  as  to 
whether  any  signal  was  given  from  the  locomo- 
tive, and  there  was  no  flagman  at  the  crossing. 
The  evidence  also  tended  to  show  that  for  a 
distance  of  about  two  blocks  south  of  the  cross- 
ing the  plaintiff  could  not  have  seen  an  ap- 
proaching train  by  reason  of  intervening  build- 
ings and  a  high  fence.  Such  obstruction  to 
the  view  on  the  west  side  of  the  street  extend- 
ed to  within  36  feet  of  the  center  of  the  rail- 
road track.  The  evidence,  as  returned,  does 
not  show  very  distinctly  the  opportunities  of 
the  plaintiff  for  seeing  an  approaching  train 
while  he  was  at  a  greater  distance  than  two 
blocks  fi'om  the  crossing,  although  it  is  shown 
that  at  some  places  at  least  one  could  see  be- 
tween intervening  buildings.  The  plaintiff's 
evidence  was  that  he  both  looked  and  listened, 
walking  his  hoi"ses.  but  did  not  see  or  hear 
the  train,  or  any  signal,  until  the  train  dashed 
in  front  of  his  team.  From  the  fact  that  there 
was  no  collision  with  the  train,  it  does  not  fol- 
low that  the  neglect  to  ring  the  bell  or  to  have 
a  flagman  at  the  crossing  was  immaterial.  It 
cannot  be  assumed  that,  if  signals  of  the  ap- 
proach of  the  tr^in  had  been  given,  the  plaintiff 
ABB.CORP.— 19 


would  not  have  heard  or  seen  them,  and  have 
stopped  his  horses  (although  he  says  they  were 
"safe  and  true")  at  such  a  distance  from  tlie 
track  that  the  passing  train  would  not  have 
greatly  frightened  them.     An  ordinance  of  the 
city,  requiring  railroad  companies  whose  trains 
crossed  this  avenue  to  keep  a  flagman  there  to 
give  signal  of  the  approach  of  cars  and  loco- 
motives, was  received  in  evidence,  the  defend- 
ant   objecting.     The    suggestion    now    made, 
that  the  ordinance  is  uncertain  in  its  temis,  re- 
quiring the  presence  of  a  flagman  "at  all  nec- 
essary times  of  day  and  night,"  was  not,  we 
think,  called  in  question  by  the  objection  stated 
at  the  trial,  which  seems  to  have  been  directed 
to  the  i)oint  that  the  charter  of  the  city  did  not 
authorize  the  council  to  pass  an  ordinance  up- 
on this  subject,  and,  further,  perhaps,  that  the 
ordinance  was  unreasonable.     It  is  apparent 
that  the  trial  court  so  understood  the  objection, 
and  was  justified  in  so  doing.     It  is  expressly  / 
conceded  on  tlie  part  of  the  appellant  that  un- 
der the  general  powers  conferred  on  the  city   / 
council  it  had  authority  to  make  any  reason-   ' 
able  regulation  upon  this  subject,  unless  such 
general  authority  is  to  be  deemed  restricted  by  / 
subdi%ision  38,   §  5,  subc.   4,   of  the  charter, 
(chapter  9,  Sp.  Laws  1889.)     By  that  section 
the  city  council  is  expressly  authorized  to  en- 
act ordinances  for  the  various  purposes  speci- 
fied, among  which  is  that  above  referred  to.  j 
the  thirty-eighth:     "To  regulate  the  speed  of 
cars  and  locomotives  within  the  limits  of  said   j 
city,  and  prevent  the  obstruction  of  any  street   / 
*    *    *    by   any  railroad   car,    locomotive,   or  ' 
train  of  cars."     The  general  safety  clause  of 
the  charter,  (section  3  of  the  same  subchap-   i 
ter,)  which  confessedly  is  sufficiently  compre-  / 
hensive  to  include  authority  to  pass  a  proper  / 
ordinance  upon  the  subject  under  considera-  • 
tion,  confers  such  genei-al  authority  "in  addi- 
tion to  any  other  powers  herein  granted."     It 
thus  appears  that  it  was  no4:  intendetl  that  the 
specific  enumeration  of  subjects  or  cases  in 
section  5  should  comprehend  all  the  cases  or 
subjects  to  which  the  authority  of  tlie  council   j 
should  extend.    Nor  is  the  nature  of  the  spe-  / 
cial  provision  relating  to  the  speed  of  railway 
trains  such,   or  so  related   to  the  subject  of 
stationing  flagmen  at  street  crossings,  that  it 
is  to  be  construed  as  restricting  the  general 
grant  of  power  so  that  it  shall  not  extend  to 
the   latter   subject.     While  the  two   subjects 
relate  to  railroad  operations,  they  are  otherwise 
different    and    distinct.     The    case    is    distin- 
guisliable  from  tliat  of  State  v.  Hammond.  40 
Minn.  43.  41  N.  W.  243.     Neither  the  assign- 
ments of  error  nor   the  exceptions  raise  the 
point  that  the  court  erred  in  submitting  to  the 
jury  the  question  whether  the  ordinance  was 
reasonable.     Judgment  aflirmed. 


290 


STREETS   AND    BRIDGES. 


BURGER  V.  MISSOURI  PAG.  R.  00. 

(20  S,  W.  439,  112  Mo.  23S.) 

Supreme  Court  of  Missouri,  Division  No.  2. 
Oct.  10,  1892. 

Appeal  fi-om  circuit  court,  Moniteau  county; 
E.  L.  Edwards,  Judge. 

Action  by  Edgar  Burger,  by  Thomas  M.  Bur- 
ger, liis  next  friend,  against  the  Missouri  Pa- 
cific Raih'oad  Company,  to  recover  damages 
for  personal  injuries  resulting  from  the  alleged 
negligence  of  defendant's  employes.  Judg- 
ment for  plaintiff.  Defendant  appeals.  Af- 
firmed. 

H.  S.  Priest  and  W.  S.  Shirk,  for  appellant. 
Moore  &  Williams  and  Draffen  &  Williams, 
for  respondent 

MACFARLAXE,  J.i        ♦        ♦        *        *        * 

3.  Defendant  moved  for  a  nonsuit  at  the 
close  of  all  the  evidence,  upon  two  grounds: 
First,  that  the  evidence  did  not  show  negli- 
gence on  the  part  of  defendant;  and,  second, 
that  the  evidence  did  show  such  contributory 
negligence  on  the  part  of  plaintiff  as  should 
prevent  his  recovery.  This  motion  was  de- 
nied, and  the  luling  of  the  court  in  doing  so  is 
assigned  as  error.  The  facts,  as  disclosed  by 
the  evidence,  and  about  which  there  is  no  real 
controversy,  were,  in  substance,  as  follows: 
On  the  3d  day  of  :May,  18S9,  plaintiff  was  9 
years  and  10  months  old,  and  was  a  bright,  in- 
telligent, and  active  boy.  He  lived  with  his 
parents  a  few  bloclcs  south  and  east  of  the 
railroad.  The  railroad  runs  through  the  town 
east  and  west,  and  Oak  street,  which  was  one 
of  the  principal  sti-eets  of  the  town,  ran  north 
and  south  across  the  railroad.  There  were 
two  side  tracks  and  one  main  track  acx-oss  Oak 
street.  The  schoolhouse  was  on  the  north 
side  of  the  railroad,  and  over  Oak  street  was 
the  usual  route  from  the  home  of  plaintiff  to 
school.  On  said  day,  plaintiff,  accompanied 
by  his  sister,  13  years  of  age,  started  to  school, 
and  traveled  down  Oak  street,  as  usual,  to  the 
I'ailroad,  where  they  found  a  train  of  freight 
cars  standing  on  one  of  the  side  tracks  across 
tlie  street.  After  waiting  there  some  15  min- 
utes, and  hearing,  as  he  testified,  the  school 
bell  ringing,  plaintiff  put  his  hands  upon  the 
cars,  and  his  foot  between  the  drawheads,  and 
just  as  he  went  to  go  over  the  train  came  back 
together,  and  caught  his  foot  between  the  draw- 
licads.  He  stooped  down  and  pulled  out  the 
coupling  pin,  and  the  rest  of  the  train  started 
up.  Amputation  of  the  foot  was  necessai-y. 
Plaintiff  testified  that  a  man  crossed  before 
him.  He  admitted  that  he  had  been  to' J  by 
his  parents  that  it  was  dangerous  to  attempt  to 
cross  over  trains,  and  warned  not  to  do  so. 
He  knew  about  signals  of  whistling  and  ring- 
mg  bells  on  engines,  and  that  there  was  a 
street  300  feet  west  of  this  crossing  on  which 
he  could  have  crossed  the  track,  and  by  which 
he  could  have  gone  to  school.     The  evidence 

1  Part  of  the  opinion  is  omitted. 


tended  to  prove  that  when  the  train  moved 
back  no  signal  was  given.  None  of  the  men 
in  charge  of  the  train  knew  that  plaintiff  was 
at  the  time  attempting  to  cross  over  it,  or 
that  he  was  about  it,  or  in  any  wise  in  danger. 
The  court  admitted,  over  defendant's  objec- 
tion, the  charter  of  the  town,  and  an  ordinance 
prohibiting  the  obstruction  of  streets  by  trains 
for  more  than  10  minutes  at  any  one  time.  It 
will  be  seen  that  the  evidence  tends  to  prove 
the  allegations  of  the  petition  which  charge 
negligence  of  defendant.  The  petition  being 
suflicient,  as  has  been  seen,  and  the  evidence 
tending  to  prove  its  charges,  a  case  was  made 
for  the  determination  of  the  jury  as  to  the 
negligence  of  defendant.  It  is  insisted  that 
the  act  of  plaintiff,  having  the  intelligence,  ex- 
perience, knowledge,  and  general  capacity  he 
was  shown  by  the  evidence  to  possess,  in  pla- 
cing himself  on  the  coupling  between  two 
cars  in  a  train,  to  which  an  engine  was  at- 
tached, was  such  conti'ibutory  negligence  as 
precluded  a  recovery.  It  must  be  conceded 
that,  for  a  boy  of  his  age,  plaintiff  was  shown 
to  possess  unusual  capacity.  He  was  bright, 
intelligent,  and  active;  had  some  knowledge 
of  the  movement  of  trains  and  the  use  of  train 
signals;  and  admitted  that  he  knew  it  was 
dangerous  to  undertake  to  pass  through  be- 
tween cars  in  a  train,  and  had  been  warned 
by  his  parents  not  to  attempt  to  do  so.  It 
also  appeared  that  another  convenient  and  un- 
obstructed route  to  school  was  open  to  him. 
It  may  also  be  conceded  that  the  act  of  plain- 
tiff, when  measured  by  the  standard  applied  to 
an  adult  person  of  ordiuai-y  prudence,  was  a 
negligent  act.  Hudson  v.  Railway  Co.,  101 
Mo.  13,  14  S.  W.  15;  Corcoran  v.  Railway  Co., 
105  Mo.  399,  16  S.  W.  411.  It  was  said  in 
Spillane  v.  Railway  Co.  (decided  at  this  term) 
20  S.  W.  293,  that  "no  arbitrai-y  rule 'can  be 
established  fixing  the  age  at  which  a  child, 
without  legal  capacity  for  other  purposes,  may 
be  declared  wholly  capable  or  incapable  of  un- 
derstanding and  avoiding  dangers  to  be  en- 
countered upon  railway  tracks.  It  is  a  ques- 
tion of  capacity  in  each  case."  Common  ex- 
perience and  observation  teach  us  that  due 
care  on  the  part  of  an  infant  does  not  require 
the  judgment  and  thoughtfulness  that  would 
be  expected  of  an  adult  person  under  the  same 
circumstances.  In  the  conduct  of  a  boy,  we 
expect  to  find  impulsiveness,  indiscretion,  and 
disregard  of  danger,  and  his  capacity  is  meas- 
ured accordingly.  A  boy  may  have  all  the 
knowledge  of  an  adult  respecting  the  dangers 
which  will  attend  a  particular  act,  but  at  the 
same  time  he  may  not  have  the  prudence, 
thoughtfulness.  and  discretion  to  avoid  them 
which  are  possessed  by  the  ordinarily  prudent 
adult  person.  Hence  the  rule  is  believed  to 
be  recognized  in  all  the  courts  of  the  country 
that  a  child  is  not  negligent  if  he  exercise  that 
degree  of  care  which,  under  like  circumstances, 
would  reasonably  be  expected  of  one  of  his 
years  and  capacity.  Whether  he  used  such 
care  in  a  particular  case  is  a  question  for  the 
jury.     Beach,  Contrib.  Xeg.  §  117;    Eswin  v. 


MUNICIPAL    CONTROL    OF    STREETS. 


291 


Railway  Co.,  96  Mo.  295,  9  S.  W.  577;  O'Flah- 
ertj'  V.  Railway  Co.,  45  Mo.  70;  Pluinley  v. 
Birjje.  124  Mass.  57;  Meibus  v.  Dodge,  38 
Wis.  300;  Railroad  Co.  v.  Young,  81  Ga.  397, 
7  S.  E.  912. 

4.  Defendant  insists  that  the  ordinance  of 
the  city,  limiting  the  time  streets  might  be 
obstructed  by  trains  to  10  minutes,  was  not 
authorized  by  any  provision  of  the  cliarter. 
We  thinli  ample  authority  was  granted  this 
city  under  its  charter  to  authorize  the  council 
to  pass  the  ordinance  in  question,  llie  char- 
ter gave  the  city  the  right  and  control  over 
\  the  pubhc  streets,   and  the  council  powei*   to 


pass  any  ordinance  "usual  or  necessary  for  the  / 
well-being  of  the  inhabitants."     The  general  / 
grant  of  power  to  municipal   coiijorations  to 
pass  ordinances  or  by-laws  for  the  general  wel-   ' 
fare  gives  authority  to  pass  by-laws,  "reason- 
able in  their  character,  upon  all  other  matters 
(not  authorized  by  special  grant)  within  the    / 
scope  of  their   municipal  authority,   and  not  / 
repugnant    to    the    constitution    and    general  / 
laws  of  the  state,"     1  Dill.  Mun.  Corp.  §§  315, ' 
316.2 


2  Part  of  the  opinion  is  omitted. 


292 


STREETS    AIsT)    BRIDGES. 


CITY  OF  CHARITON  v.  FITZSIMMONS. 

SAME  V.  FRAZIER  et  al. 

(54  N.  W.  146,  87  Iowa,  226.) 

Supreme    Court  of   Iowa.     Jan.    24,    1893. 

Appeals  from  district  court,  Lucas  county; 
W.  I.  Babb,  Judge. 

The  defendants  were  an-ested.  upon  war- 
rants issued,  by  the  mayor  of  tbe  plaintifE 
city  upon  informations  charging  them  w^ith 
violating  an  ordinance  of  the  city.  The  de- 
fendants were  taken  before  the  mayor,  and 
entered  pleas  of  not  guilty.  A  trial  was  had, 
and  they  were  found  guilty,  and  judgment 
was  entered,  against  each  of  them  in  the  sum 
of  $10  and  costs.  They  appealed  to  the  dis- 
trict court,  where,  by  agreement,  the  pleas 
of  not  guilty  were  withdrawn,  and  the  de- 
fendants demurred  to  the  informations.  The 
demurrer  was  sustained.,  and  the  plaintiff  city 
appeals. 

W.  B.  Barger  and  T.  M.  Stuart,  for  appel- 
lant. J.  C.  MitcheU  and  Warren  S.  Duugan, 
for  appellee. 

ROTHROCK,  J.  The  ordinance  under  which 
the  arrests  were  made  and  trial  had  was,  by 
agreement,  made  part  of  the  record,  ahd  the 
demurrer  was  sustained  upon  the  ground 
that  the  ordinance  was  invahd.  The  ordi- 
nance in  question,  so  far  as  it  pertams  to  the 
question  involved,  is  as  follows:  "First.  That 
the  collection  or  congregation  of  pereons  upon 
the  streets  or  sidewalks  of  the  city,  and  the 
marching  or  movements  of  persons  in  crowds 
or  processions  thereon,  at  such  times  and 
places,  and  in  such  numbers  and  maimer,  as 
to  obstruct  or  impede  public  ti-avel  thereon, 
or  to  injuriously  affect  or  interfere  with  the 
business  of  any  person  or  persons  on  such 
streets,  is  hereby  prohibited;  and  it  is  hereby 
made  the  duty  of  the  mayor  and  city  marshal 
to  order  all  such  congregations  or  processions 
of  persons  to  quietly  disperse;  and  the  f all- 
ium or  refusal  of  any  person  or  persons  to 
promptly  obey  such  order  of  the  mayor  or 
city  marshal  shall  be  deemed  a  misdemeanor, 
and,  upon  conviction  thereof,  such  person  or 
persons  shall  be  fined,  in  any  sum  of  not  less 
than  one  dollar  and  not  more  than  fifty  dol- 
lars, in  the  discretion  of  the  court,  and  shall 
be  imprisonefl  in  the  county  jail  until  such 
fines  and  costs  of  prosecution  are  paid.  Sec- 
ond. That  the  makmg  of  any  noise  upon  the 
streets  or  sidewalks  of  the  city,  by  means  of 
musical  instruments  or  otherwise,  of  such 
character  and  extent,  and  at  such  times  and 
places,  as  would  likely  cause  horses  and 
teams  to  become  frightened  and  imgovema- 
ble,  or  of  such  character,  extent,  and  duration 
as  to  annoy  and  disturb  others,  is  hereby  pro- 
hibite<l;  and  it  is  hereby  made  the  duty  of 
the  mayor  and  city  marshal  to  order  any  per- 
son or  per-ons  making  such  no'se  to  desist 
therefrom,  and  the  failure  or  refusal  of  such 
person  or  persons  to  promi)tly  obey  sur-h  or- 
der of  the  mayor  or  city  marshal  is  hereby 


declared  to  be  a  misdemeanor,  and,  upon  con- 
viction thereof,  such  person  or  persons  shall 
be  punishetl  by  a  fine  of  not  less  than  one 
dollar  and  not  more  than  fifty  dollars  for  each 
offense,  in  the  discretion  of  the  court,   and 
shall  be  imprisonc<l  in  the  coimty  jaU  until 
such  fines  and  costs  of  prosecution  are  paid." 
The  grounds  of  demurrer  are  that  this  ordi- 
nance is  vmreasonable  and  unjust,  and  pre- 
scribes a  penalty,  not  for  the  violation  of  an 
ordinance,  but  for  the  refvLsal  to  obey  an  or- 
der of  the  mayor  or  city  marshal.    It  Is  im- 
portant to  firet  determine  whether  the  acts 
sought  to  be  prohibited  by  the  ordinance  are 
such  as  the  city  may  pimish  by  ordinance. 
"We  do  not  understand  counsel  to  claim  that 
collections    and    congregations    of    "persons 
upon  the  streets  or  sidewalks  of  a  city,  and 
the   marching   or   movements  of  persons   in 
crowds    or    processions    thereon,"    may    not, 
imder  certiiln  circumstances  and  conditions, 
be  prohibited.    It  is  not  the  orderly  proce.s- 
sion,  with  flags  and  banners,  miisical  instni- 
ments,  and  aU  the  accompaniments,  so  often 
seen  upon  the  streets  of  our  cities  and  town>, 
by   oru"   civic   societies,   by   pohtical   parties, 
and  not  infrequently  at  funerals,  which  this 
ordinance    prohibits.    These    processions    are 
everywhere  not  only  permitted,  but  encour- 
aged.   But  suppose  these  processions  should 
for  an  unreasonable  time  obsti-uct  travel  on 
the  streets,  or  injuriously  affect  l)usiness,  and 
be  carried  on  to  such  an  extent  and  for  such 
time  as  to  be  an  annoyance  and  a  nuisance 
to  tlie  public,  there  ctfn  be  no  question  that 
the  city  may  by  ordinance  prohibit  them,  and 
pimish  the  persons  making  such  an  unreason- 
able disturbance.    If  the  ordinance  involved 
in  this  controversy  were  a  sweeping  prohibi- 
tion of  all  processions,  parades,  and  all  riding 
and  driving  upon  the  public  streets  of  the  city 
with  bands  of  music,  flags,  torches,  and  other 
paraphernaUa  of  the  mo<lem  street  parade,    . 
there  can  be  no   doubt  that   the   ordinance    | 
would  be  unreasonable,  unjust,  and  invaUd.    ' 
Within  proper  Umits,  the  citj'  has  the  power    . 
to  "prevent  riots,  noise,  disturbance,  or  dis-   ' 
orderly    assemblages,    *    *    *    and    to    pre- 
serve peace  and  order  therein."    Code,  §  456.  ? 
We  do  not  understand  counsel  for  the  defend- 
ants to  question  these  genei-al  propositions. 
The  real  objection  which  they  urge  to  the  or-  i 
dinance  is  that  the  offense  is  made  to  depend  1 
upon  the  whim  or  caprice  of  the  mayor  or 
city  marshal.    It  is  true  that  under  the  ordi- 
nance, when  i>ersons  are  arresteil  and  brought 
for  trial,  it  is  incumbent  on  the  prosecution  ] 
to  show  by  evidence  that  the  order  to  desist    , 
from  making  the  disturbance  was  given  by 
the  mayor  or  city  marehal.    But  it  is  also    , 
incumbent  on  the  prosecution  to  prove  that 
the  person  or  persons  charged  were  guilty  of 
doing  the  prohibited  acts.    This  is  the  grava-  . 
men  of  the  charge.    Evidence  that  the  order    i 
to  desist  was  given,  without  more,  woiild  not    I 
authorize  a  conviction.    We  are  aware  of  no  / 
case   determined   by   a   court   of  last   resort 
which  is  exactly  in  point  upon  the  question 


MUNICIPAL   CONTROL   OF    STREETS. 


293 


under  consideration.  In  Re  Frazee,  63  Mich. 
396,  30  N.  W.  Rep.  72,  it  was  determined 
that  an  ordinance  absolutely  proliil^iting 
street  processions  with  musical  instruments, 
banners,  torches,  etc.,  or  while  singini?  or 
shouting,  witliout  the  consent  of  the  mayor 
first  obtained,  was  unreasonable,  and  there- 
fore invalid.  In  that  case  the  offense  con- 
sisted in  failing  to  obtain  the  consent  of  the 
maj'or  before  the  procession  or  performance 
began.  In  the  case  at  bar  persons  are  not 
proliibitod  from  putting  a  procession  in  mo- 
tion. The  prohibition  extends  to  such  a  dis- 
play as  causes  a  public  annoyance.  So  in 
the  case  of  Mayor  of  Baltimore  v.  Radecke, 
49  Md.  217,  it  was  held  that  an  oixlinance 
which  provided,  that  permits  for  steam  boil- 
ers and  engines  might  be  revolted  and  re- 
moved after  six  months'  notice  from  tlie 
mayor,  and  any  one  receiving  such  notice, 
who  refused  to  comply  therewith,  sliould  pay 
a  fine,  was  held  to  be  imreasonable.  This 
was  an  imwarrantable  and  vmreasonable  in- 
terference with  the  prosecution  of  a  legiti- 
mate biisiness,  and  depended  upon  the  mere 
caprice  of  the  mayor.  In  the  case  at  bar,  as 
we  have  said,  the  offense  consists  in  doing 
acts  which  are  everywhere  regarded  as  sub- 


ject to  municipal  control.    Other  cases   are 
cited  by  coimisel,  but  it  appears  to  lis  tliat 
they  are  cleai'Iy  distinguishable  from  the  case 
at  bar.    On  the  other  hand,  in  the  case  of 
Com.  V.  Davis,  140  Mass.  4S.'5,  4  N.  E.  Rep. 
577,  an  ordinance  providing  that  "no  persons 
shall,  except  by  the  permission  of  the  said 
committee,  deliver  a  sermon,  lecture,  adlress, 
or    (liscoui-se     on    the    common     or     public 
grounds,"  it  was  held  that  the  ordinance  was 
not  imreasonable  and  invalid.    The  commit- 
tee refcrre<l  to  in  the  ordinance  was  the  com- 
mittee of  the  city  councU  having  charg  >  of 
the  public  groimds.    See,  also.  Com.  v.  Plais- 
ted,  148  Mass.   375,  19  N.   E.  Rep.  224.    In 
our  opinion,  the  ordinance  in  question  is  not 
unreasonable.    It  is  applicable  to  aU  persons 
who,  by  violating  its  provisions,  subject  them- 
selves to  its  penalties;  and  the  mere  fact  that  \ 
no  arrest  can  be  made  unless  the  mayor  or  ■ 
mai"shal  shall  order  the  offender  to  cease  from    I 
violating  the  ordinance,  instead  of  being  op-   | 
pressive  on  the  citizen,  operates  as  a  wamiag 
to  him  to  delist  from  a  violation  of  the  ordi-  ,' 
nances.    He  should  not  be  heard  to  con  plain  , 
of  this  feature  of  the  ordinance.    The  order 
of  the  district  court  sustaining  the  demurrer 
to  the  information  is  revereed. 


294 


STREETS   AXD    BEIDGES. 


WETTENGEL  t.  CITY  OF  DENVER. 

(39  Pac.  343,  20  Colo.  552.) 

Supreme  Court  of  Colorado.     Feb.  8,  1895. 

Error  to  county  court,  Arapahoe  county. 

John  Wettengel,  convicted  in  a  police  court 
of  the  violation  of  a  city  ordinance,  upon 
appeal  to  the  county  court  was  again  con- 
victed, and  from  the  judgment  therein  brings 
error.     Reversed. 

J.  Warner  Mills,  for  plaintiff  in  error.  F. 
A.  Williams  and  A.  B.  Seaman,  for  defendant 
in  error. 

CAMPBELL,  J.  There  are  a  number  of  er- 
rors assigned,  the  principal  one  of  which  is  the 
invalidity  of  the  ordinance.  There  are,  how- 
ever, two  other  questions  which  will  be  con- 
sidered, the  determination  of  which  will  work 
a  reversal  of  this  judgment;  but,  inasmuch  as 
there  are  a  number  of  cases  pending  in  the 
court  below  which  depend  upon  the  decision  in 
this,  we  have  concluded  to  determine  the  main 
point  involved,  and  pass  upon  the  constitution- 
ality of  the  ordinance. 

The  evidence  tends  to  show  that  on  the 
night  of  August  6,  ISOO,  on  Larimer  street, 
in  the  city  of  Denver,  between  Eighteenth 
and  Nineteenth  streets,  the  defendant,  with 
others,  distributed  to  travelers  on  the  street, 
whom  he  could  induce  to  take  the  same, 
600  or  700  circulars  or  handbills,  about  7  by 
10  inches  in  size,  which  gave  the  names  of 
the  6  o'clock  and  Sunday  closing  houses  in 
Denver  dealing  in  ready-made  clothing  and 
boots  and  shoes,  and  urged  the  public  to 
patronize  them.  At  the  same  time  the  re- 
ceivers of  these  circulars  were  requested  not 
to  drop  them  on  the  streets,  and  some  of 
those  to  whom  such  requests  were  made 
complied  therewith,  but  others  dropped  them 
on  the  street.  The  circulators  endeavored  to 
pick  up  such  as  were  thrown  away,  but,  not- 
withstanding this,  some  of  these  circulars 
were  deposited  on  the  street,  and  found  there 
and  on  the  sidewalks  the  following  morning. 

The  validity  of  this  ordinance  is  assailed 
on  the  ground  that  it  is  unreasonable.  It  is 
contended  that  it  is  an  "attempt  to  regulate 
and  restrain  the  conduct  of  the  citizen  in 
matters  of  mere  indifference,  without  any 
good  end  in  view";  that  it  aims  to.  prohibit 
the  cariying  on  of  a  business  which  in  gen- 
eral, and  in  itself,  is  lawful.  The  legisla- 
ture not  having  conferred  upon  the  city  the 
express  authority  to  pass  an  ordinance  pro- 
hibiting the  distributing  of  circulars  on  the 
streets,  the  power,  if  it  exist  at  all,  must  be 
derived  from  the  general  welfare  clause,  and 
the.  power  given  to  prevent  "practices  hav- 
ing a  tendency  to  frighten  teams  or  horses." 
The  reasonableness  of  this  ordinance,  there- 
fore, is  a  matter  for  judicial  determination. 
No  useful  puriwse  would  be  subserved  by 
following  counsel  for  plaintiff  in  error  in  his 
discussion  of  the  competitive  wage  system, 
of  the  conflicting  views  of  speculative  phil- 


osophers on  sociology,  or  of  the  rights  of  em- 
ployers and  employes,  all  of  which  is  not 
germane  to  the  present  discussion.  The  right 
of  clerks  to  combine  to  secure,  by  all  lawful 
means,  shorter  hours  or  higher  wages,  is  un- 
questioned, and  needs  no  argument  to  sup- 
port it.  Our  hearty  concurrence  in  all  that  is 
said  by  counsel  in  this  part  of  the  argument 
would  not  lead  us  to  a  decision  of  the  prop- 
ositions which  are  necessarily  involved  in  the 
determination  of  this  case.  We  proceed  at 
once  to  a  discussion  of  the  main  point,  viz. 
the  validity  of  the  ordinance: 

If  the  object  of  this  ordinance  is  to  prohibit 
the  distributing  to  travelers  on  the  street  of 
any  circular  or  handbill,  irrespective  of  its 
character,  it  might  be  held  unreasonable, 
and  come  within  the  principle  announced  in 
the  case  of  People  v.  Armstrong,  73  Mich. 
2S8,  41  N.  W.  275.  The  section  of  the  or- 
dinance held  unconstitutional  in  that  case  is, 
in  substance,  as  follows:  "No  person  shall 
himself,  or  by  another,  circulate,  distribute 
or  give  away  circulars,  handbills  or  adver- 
tising cards  of  any  description  in  or  upon  any 
of  the  public  streets  and  alleys  of  said  city." 
As  the  court  in  that  case  said,  "the  offense  is 
made  complete  in  itself  by  the  mere  act  of 
distributing  or  giving  away  these  enumerated 
articles."  For  that  reason,  among  others, 
the  ordinance  was  declared  invalid.  In  the 
ordinance  before  this  court  such  are  not  its 
provisions,  but  the  prohibition  applies  only 
to  the  distributing  of  handbills  or  circulars 
of  such  a  character  or  nature  that  the  trav- 
eler will  naturally  or  probably  throw  the 
same,  immediately  after  so  taking  them,  up- 
on or  litter  the  street,  or  place  the  same 
where  they  may  be  or  may  become  calculated 
to  frighten  or  injure  or  endanger  horses.  So 
that,  by  the  very  terms  of  the  ordinance,  the 
offense  is  made  to  consist,  not  in  the  mere 
act  of  distributing  handbills  or  circulars, 
but  in  the  distributing  of  such  handbills  or 
circulai-s  as  will  probably  or  naturally  be 
thrown  away,  and  result  in  the  littering  of 
the  street  or  frightening  of  horses.  In  Fra- 
zee's  Case,  G3  Mich.  396,  30  N.  W.  72.  com- 
monly known  as  the  "Salvation  Army  Case," 
it  was  held  that  an  ordinance  which  pro- 
hibited all  persons  from  parading  or  riding 
in  the  streets  of  Gi-and  Rapids  with  musical 
instruments,  etc.,  without  having  first  ob- 
tained the  consent  of  the  mayor,  was  void, 
because  it  sought  to  "suppress  what  in  gen- 
eral is  perfectly  lawful,  and  leaves  the  pow- 
er of  permitting  or  resti-aining  processions  to 
an  unregulated  official  discretion."  These 
cases  can,  we  think,  be  distinguished  in  prin- 
ciple from  the  one  now  before  us.  In  the  dis- 
tributing of  circulars  or  handbills  which  are, 
in  themselves,  unobjectionable,  or  in  the  pa- 
rading of  the  streets  with  musical  instru- 
ments, there  is  nothing  unlawful,  and  an 
absolute  prohibition  of  the  same  might  be 
beyond  the  power  of  the  city  council  to  en- 
force; but  the  safety  of  the  people  who  use 
the  streets  and  sidewallis  does  require  some 


CONTROL  OF  MANNER  OF  USE  BY  PUBLIC. 


295 


restraint  upon  indiscriminate  distributing  of 
handbills  and  circulars  of  such  a  nature  as 
have  a  tendency  to  frighten  horses,  or  which 
will  litter  the  streets.  It  is  a  matter  of  com- 
mon knowledge  that  nothing  is  more  likely 
to  frighten  horses  than  pieces  of  paper  car- 
ried by  the  wind  through  the  streets  around 
and  about  the  places  where  such  horses  may 
be.  Any  practice  which  naturally  tends  to 
cause  the  littering  of  the  street  with  loose 
papers,  which,  flying  about,  will  cause  fright 
to  horses,  and  so  tend  to  the  injury  of  the 
public,  is  not  a  lawful  practice,  and  the  en- 
forcement of  this  ordinance  will  discourage 
and  put  a  stop  thereto.  In  another  view  of 
the  case,  this  ordinance  is  reasonable.  The 
throwing  of  loose  handbills  and  circulars  in- 
to the  street  is  certainly  reprehensible,  and  is 
a  matter  for  police  regulation.  If  one,  there- 
fore, hands  to  another  a  handbill  which  the 
latter  naturally  will  at  once  throw  into  the 
street,  the  former  is  a  party  to  the  prohibited 
act  The  one  who  distributes  the  circular 
to  the  one  who  actually  drops  it  in  the 
street,  to  the  injury  of  the  public,  is  just 
as  guilty  as  he  who  directly  drops  the  pa- 
per. Indirectly,  he  contributes  to  the  wrong, 
and  should  be  held  liable  the  same  as  if  he 
himself  threw  into  the  street  the  objectiona- 
ble article.  The  evident  object  of  the  ordi- 
nance in  question  is  to  prevent  the  littering 
of  the  street  and  the  frightening  of  horses. 
It  certainly  tends  to  the  accomplishment  of 
one  of  the  pui-poses  for  which  the  city  was 
incorporated,  viz.  the  protection  of  its  in- 
habitants from  danger  as  they  pass  along  its 
streets,  engaged  in  their  business.  Such  an 
object  is  certainly  legitimate,  and  the  means 
employed  are  reasonable,  and  surrounded  by 
sufficient  safeguards.  The  ordinance  is  free 
from  the  objections  which  seem  to  prevail 
with  the  supreme  court  of  Michigan  in  the 
cases  cited.  With  the  construction  which 
we  have  put  upon  the  section  under  consid- 


eration, "the  actual  operation  of  the  ordi- 
nance in  all  cases  which  may  be  brought 
thereunder"  cannot  result  in  the  injustice 
which  is  urged  as  likely  to  follow  its  en- 
forcement. We  hold  the  ordinance  valid,  as 
a  reasonable  exorcise  of  the  police  power  of 
the  city,  delegated  to  it  by  the  legislature. 

There  are,  however,  errors  apparent  in  the 
record  which  compel  a  reversal  of  this  case. 
Over  the  objection  of  defendant's  counsel, 
the  court  orally  instructed  the  jury.  This  is 
error.  Lee  v.  Stahl,  9  Colo.  20S,  11  Pac.  77; 
Code,  1SS7,  §  187,  subd.  6. 

Defendant  had  the  right,  so  far  as  this  or- 
dinance is  concerned,  to  distribute  any  cir- 
culars that  were  not  of  the  objectionable 
character  enumerated.  The  evidence,  either 
of  the  plaintiff  or  defendant,  should  show 
that  the  circulars  or  handbills  distributed 
by  the  defendant  came  within  the  enumera- 
tion of  those  whose  distribution  the  ordi- 
nance prohibited.  Whether  or  not  they  were 
of  such  a  character  was  a  question  of  fact, 
for  the  jury,  not  a  matter  of  law,  for  the 
court.  The  jury  must  determine  the  ques- 
tions of  fact,— not  only  that  the  defendant 
distributed  circulars  as  charged  in  the  com- 
plaint, but  also  that  these  circulars  were  of 
the  character  specified  as  coming  within  the 
provisions  of  the  ordinance.  In  the  charge 
to  the  jury  the  court  below  eliminated  the 
latter  proposition,  and,  in  effect,  directed 
the  jury  to  find  the  defendant  guilty  if  they 
believed  from  the  evidence  that  the  defend- 
ant, with  others,  merely  distributed  the  cir- 
culars or  handbills  which  were  offered  in 
evidence.  It  is  apparent  that  the  court,  as  a 
matter  of  law,  determined  that  the  circulars 
which  were  distributed  came  within  the 
prohibition  of  the  ordinance,  and  in  so  doing 
it  usurped  the  province  of  the  jury.  For 
these  two  errors  committed  by  the  court  be- 
low the  judgment  should  be  reversed,  and  the 
cause  remanded  for  a  new  trial.    Reversed. 


296 


STREETS   AND    BRIDGES. 


COMMONWEALTH  v.  FENTON. 
(29  N.  E.  653,  139  Mass.  195.) 
Supreme  Judicial  Court  of  Massachusetts.     Suf- 
folk.    March  23.  1SS5. 
Exceptions    from    superior    coui't,    Suffolk 
county;   Blodgett,  Judge. 

Nathaniel  W.  Fenton  was  convicted,  under 
an  ordinance  of  the  city  of  Boston,  of  allow- 
ing his  vehicle  to  stop  in  the  street  for  more 
than  20  minutes,  and  brings  exceptions.  Ex- 
ceptions overruled. 

H.  N.  Shepard,  Asst.  Atty.  Gen.,  for  the 
Commonwealth.    T,  J.  Emery,  for  defendant. 


PER  CURIAM.  The  regulation  which  pro- 
hibits any  person  from  allowing  his  vehicle 
to  stop  in  a  public  street  for  a  longer  time 
than  20  minutes  is  a  valid  police  regulation. 
Pub.  St.  c.  28,  §  25;  Com.  v.  Brooks,  109 
Mass.  355.  The  fact  that  the  defendant  had 
a  license  from  the  state  as  a  hawker  and 
peddler  is  immaterial.  His  license  does  not 
authorize  him  to  violate  the  ordinances  or 
police  regulations  of  the  city.  He  is  subject 
to  the  regulation  in  question  in  the  same  man- 
ner as  is  any  person  exercising  a  trade  which 
does  not  require  a  license.  Exceptions  over- 
ruled. 


CJONTROL  OF  MANNER  OF  USE  BY  PUBLIC. 


297 


COMMONWEALTH   v.   MULHALL. 

(39  N.  E.  183,  1G2  Mass.  49C.) 

Supreme  Judicial  Court  of  Massachusetts. 
Suffolk.     Jan.  1,  18f^5. 

Exceptions  from  superior  court,  Suffolk 
county;   J.  B.  Richardson,  Jucl^e. 

Patrick  Mulhall  was  convicted  of  violatinj; 
a  city  ordinance,  and  excepts.  Exceptions 
overruled. 

Fred'k  E.  Hurd.  First  Asst.  Dist.  Atty.,  for 
the  Commonwealth.  G.  W.  Wiggin  and  P. 
H.  Cooney,  for  defendant. 

KNOWLTON,  J.    By  Pub.   St.  c.  53,  §  15. 

It  is  provided  that  "the  mayor  and  alder- 
men and  selectmen  may  make  such  rules  and 
regulations  for  the  passage  of  carriages,  wag- 
ons, carts,  trucks,  sleds,  sleighs,  horse  cars 
or  other  vehicles,  or  for  the  use  of  sleds  or 
other  vehicles  for  coasting  in  or  through  the 
streets  or  public  ways  of  a  city  or  town  as 
tliey  may  deem  necessary  for  the  public  safe 
ty  or  convenience,  with  penalties  for  viola- 
tion thereof  not  exceeding  twenty  dollars  for 
each  offense."  This  statute  was  originally 
enacted  in  similar  language  in  the  statute 
of   1875    (chapter    13(j,   §    1).    The   ordinance 

f  which  the  defendant  is  alleged  to  have  vio- 
lated is  as  follows:    "No  person  shall  carry 

'  or  cause  to  be  carried  on  any  vehicle  in  any 

/  street  a  load,  the  weight  whereof  exceeds 
three  tons,  unless  such  load  consists  of  an 

f  article  which  cannot  be  divided."  The  stat- 
ute above  quoted  has  reference  to  the  safety 
and  convenience  of  the  public  in  the  use  of 
the  streets.  Many  of  the  streets  of  Boston 
are  greatly  crowded,  not  only  with  pedestri- 
ans, but  with  vehicles  of  almost  every  kind. 

I   It  cannot  fairly  be  said  that  this  ordinance 


has  no  reference  to  the  convenience  or  safe- 
ty of  the  public  who  use  the  streets.  We  can 
see  that  very  heavily  loaded  teams,  drawn 
by  four  or  six  horses,  in  the  most  crowded 
parts  of  the  city,  might  seriously  interfere 
with  the  convenient  use  of  the  streets  by 
others.  If  the  ordinance  is  within  the  class 
of  ordinances  in  regard  to  which  this  statute 
permits  the  mayor  and  aldermen  to  exercise 
their  judgment  and  discretion,  we  cannot  de- 
clare it  void  on  the  ground  that  we  might 
have  decided  the  question  in  reference  to  the 
necessity  of  the  ordinance  differently.  If 
they  deem  such  an  ordinance  necessary  for 
the  public  safety  or  convenience,  and  if  it  is 
not  a  clear  invasion  of  private  rights  secured 
by  the  constitution,  it  must  stand  as  a  regu- 
lation made  imder  legislative  authority.  We 
think  the  facts  offered  to  be  proved  do  not 
take  the  case  out  of  the  field  of  regulation 
by  the  legislature,  or  by  the  mayor  and  al- 
dermen as  a  local  tribunal  acting  under  the 
authority  of  the  legislatiu-e.  If  it  appeared  1 
that  the  ordinance  could  have  no  relation 
to  the  safety  or  convenience  of  the  public  in  ' 
the  use  of  the  sti-eets,  the  fact  that  the  mayor 
and  aldermen  declare  the  regulation  to  be  I 
necessary  would  not  give  it  validity.  But  we 
cannot  say  that  they  were  in  error  in  decid-  I 
ing  that  the  use  of  heavily  loaded  vehicles  J 
is  a  matter  affecting  the  public  in  the  use  of  ' 
the  streets,  which  may  be  regulated  under 
the  statute,  nor  can  we  say  that  the  ordi- 
nance is  anything  more  than  a  regulation, 
upon  the  necessity  of  which  their  decision 
is  final.  Com.  v.  Plaisted,  148  Mass.  375,  19 
N.  E.  224;  Com.  v.  Ellis,  158  Mass.  555,  33 
N.  E.  651;  Com.  v.  Fenton,  139  Mass.  195, 
29  N.  E.  653;  Com.  v.  Stodder,  2  Cush.  562; 
Com.  V.  Robertson,  5  Cush.  438.  Exceptions 
overruled. 


298 


STREETS   AND    BRIDGES. 


BURDETT  V.  ALLEN. 

(13  S.  E.  1012,  35  W.  Va.  347.) 

Supreme  Court  of  Appeals  of  West  Virginia. 
Dec.  7,  1891. 

Error  to  circuit  court,  Kanawha  county. 

Action  of  detinue  by  S.  C.  Burdett  against 
Dover  Allen.  Judgment  for  plaintiff.  De- 
fendant brings  error.    Reversed. 

W.  S.  Laidley,  for  plaintiff  in  error.  S.  G. 
Burdett,  in  pro.  per. 

ENGLISH,  J.  On  the  7th  day  of  August, 
1889,  S.  C.  Burdett  instituted  an  action  of 
detinue  against  Dover  Allen  before  C.  W. 
Hall,  a  justice  of  the  peace  of  Kanawha  coun- 
ty, in  which  the  plaintiff  complained  that 
the  defendant  unlawfully  withheld  from  him 
one  brindle  cow  of  the  value  of  $50.  The 
plaintiff  filed  affidavit  and  gave  bond  for  the 
immediate  possession  of  the  property.  On 
the  2Sth  day  of  August  the  case  was  heard, 
and  judgment  was  rendered  for  the  plaintiff 
that  he  retain  possession  of  the  property,  and 
that  he  recover  from  the  defendant  his  costs 
in  said  suit.  From  this  judgment  the  defend- 
ant took  an  appeal  to  the  circuit  court  of  said 
county,  and  on  the  10th  day  of  April,  1890, 
said  appeal  was  submitted  to  the  circuit  court 
of  Kanawha  county  upon  an  agreed  statement 
of  the  facts,  upon  consideration  wliereof,  and 
after  hearing  the  argument  of  counsel  there- 
on, the  said  court  was  of  opinion  that  the 
ordinance  of  the  city  of  Charleston  in  relation 
to  the  impounding  and  sale  of  animals  Is  un- 
constitutional, and  rendered  judgment  for  the 
l)laintiff  for  said  property  claimed  in  said  ac- 
tion, and  for  costs,  and  from  this  judgment 
the  defendant  applied  for  and  obtained  this 
writ  of  error. 

It  was  agreed  between  the  plaintiff  and  the 
defendant  that  the  following  are  the  fa£ts  to 
be  taken  as  proven  by  the  respective  parties: 
By  the  plaintiff':  That  he  lives  in  Charleston, 
and  that  he  is  the  owner  of  the  cow  which 
the  suit  is  about;  that  on  the  evening  of  the 
7th  day  of  Augiist,  1889,  the  plaintiff  found 
his  said  cow  in  charge  of  Dover  Allen,  the 
city  pound-master,  and  that  he  demanded  the 
release  of  his  cow,  which  was  refused  until 
the  charges  thereon  were  paid,  and  to  pay  the 
same  or  any  sum  the  plaintiff  declined,  and 
thereupon  he  brought  said  action,  and  the 
said  cow  was  delivered  to  him  by  the  con- 
stable on  the  order  of  the  justice  aforesaid, 
and  that  on  the  trial  of  said  action  before  the 
said  justice  judgment  wns  given  for  the  plain- 
tiff', the  said  court  holding  that  said  ordi- 
nance under  which  the  said  cow  was  held  was 
unconstitutional  and  void.  Also  the  charter 
and  ordinances  of  the  city  were  put  in  evi- 
dence. By  the  defendant:  That  he  was  on 
the  6th  day  of  August,  1889,  and  has  since 
been,  and  is  yet,  pound-master  of  the  city  of 
Charleston;  that  he  was  then,  and  is  yet, 
exercising  the  duties  of  said  office  under  and 
by  virtue  of  the  ordinances  of  said  city;  that 
on  the  night  of  the  Gth  day  of  August,  1889, 


between  10  and  12  o'clock,  the  said  Allen, 
with  two  boys  he  had  to  assist  him  in  hunt- 
ing for  and  driving  in  stray  cows,  were  out 
on  the  street,  and  found  said  cow  of  plaintiff 
in  the  public  street,  and  that  th'ey  drove  her 
to  the  city  pound,  and  fastened  her  therein 
that  night,  and  kept  her  in  said  pound  until 
taken  away  by  the  constable  the  next  day; 
that  on  the  evening  of  the  7th  of  August  the 
plaintiff'  came  and  demanded  his  cow,  claim- 
ing her,  and  defendant  demanded  his  fees, 
etc.,  allowed  him  by  the  city  ordinance, 
which  at  that  time  amounted  to  two  dollars, 
and  the  plaintiff  refused  to  pay  the  same,  and 
thereupon  the  defendant  refused  to  give  up 
the  cow,  and  the  plaintiff  brought  said  action 
before  Justice  Hall,  and  upon  his  order  the 
constable  took  the  cow  from  the  defendant; 
that  the  said  charges  of  two  dollars  are  still 
unpaid;  that  upon  the  trial  before  the  said 
justice  his  decision  was  that  the  said  city 
ordinance  was  unconstitutional  and  void, 
and  he  gave  judgment  for  the  plaintiff,  from 
which  judgment  the  said  defendant  appealed; 
that  the  said  lot  in  which  said  cow  was  im- 
pounded was  the  city  pound,  made  so  vmder 
and  by  virtue  of  an  ordinance  adopted  June 
30,  1887;  and  this  was  all  the  evidence  ad- 
duced. 

The  counsel  for  the  defendant  in  error  con- 
tends that  the  ordinance  of  the  city  of 
Charleston  under  which  the  property  of  said 
defendant  in  error  was  seized  and  impounded 
is  void  because  (1)  there  is  no  express  au- 
thority conferred  by  the  charter,  either  in 
chapter  47  of  the  Code  or  the  special  charter 
of  the  city  of  Charleston;  that  the  power  to 
impound  and  sell  animals  must  be  expressly 
conferred,  and  a  general  authority  given  to 
prevent  animals  from  running  at  large  is  not 
sufficient.  The  first  section  of  chapter  47  of 
the  Code  provides  that  "a  city,  town,  or  vil- 
lage lieretofore  estalilished,  (other  than  the 
city  of  Wheeling,)  may  exercise  all  the  pow- 
ers conferred  by  this  chapter,  altliough  the 
same  may  not  be  conferred  by  their  charter, 
and  that,  so  far  as  said  chapter  confers  pow- 
ers on  the  municipal  authorities  of  a  city, 
town,  or  village,  (other  than  said  city  of 
Wheeling.)  not  conferred  by  the  charter  of 
any  such  city,  town,  or  village,  the  same  shall 
be  deemed  an  amendment  to  said  charter;" 
and  section  28,  which  prescribes  the  powers 
and  duties  of  the  council,  provides,  among 
other  tilings,  that  sucli  council  shall  have  pow- 
er therein  "to  prevent  hogs,  cattle,  horses, 
sheep,  and  other  animals  and  fowls  of  all 
kinds  from  going  at  large  in  such  city,  towfa, 
or  village;"  and  section  29  of  said  chapter 
provides  that,  "to  carry  into  effect  these  enu- 
merated powers  and  all  others  conferred  upon 
such  city,  town,  or  village,  or  its  council,  by 
this  chapter,  or  by  any  future  act  of  the  leg- 
islature of  this  state,  the  council  shall  have 
the  power  to  make  and  pass  all  needful  or- 
ders, by-laws,  ordinances,  resolutions,  rules, 
and  regulations  not  contrary  to  the  constitu- 
tion and  laws  of  the  state,  and  to  prescribe, 


CONTROL  OF  MANNER  OF  USE  BY   PUBLIC. 


29» 


I  impose,  and  enact  reasonable  fines,  penalties, 
and  imprisonments  in  the  county  jail.  *  *  « 
Such  fines,  penalties,  and  imprisonments  shall 
be  recovered  and  enforced  under  the  judgment 
of  the  mayor  of  such  city,  town,  or  village  or 
the  person  lawfully  exercising  his  functions." 
The  ordiuance  of  the  city  of  Charleston  in  ref- 
erence to  the  public  pound  was  put  in  evl- 
denc-e  in  this  case,  and  the  first  section  thereof 
provides  that  the  inclosure  attached  to  the 
city  hall  be,  until  otherwise  ordained  by  the 
council,  constituted  the  public  pound  for  the 
impounding  of  animals  therein  subject  to  be 
impounded.  It  also  provides  in  section  2  that 
"it  shall  be  unlawful  for  any  person  being 
the  owner  or  having  charge  of  any  cow,  calf, 
or  ox  to  allow  the  same  to  run  at  large  be- 
tween sunset  and  sunrise  in  any  of  the  streets, 
lanes,  alleys,  or  commons  of  said  city  below 
the  Elk  and  Piedmont  roads;"  and  section  4 
provides:  "It  shall  be  the  duty  of  the  pound- 
master,  on  view  or  information,  forthwith  to 
take  up  all  or  any  such  animals  running  at 
large  as  aforesaid,  and  shut  up  the  same  in 
the  public  pound,"  there  to  be  retained  and 
fed  until  disposed  of  as  thereinafter  provided. 
Section  5  provides  that  the  owner  shall  be  no- 
tified forthwith;  and  section  6  provides  that, 
in  case  the  owner  shall  not  within  48  hours 
after  giving  said  notice  appear  and  prove  his 
right  to  such  animal,  the  pound-master  shall 
make  his  retiu'n  to  the  mayor,  setting  forth  the 
number  and  kind  of  animals  taken  up,  time 
when  taken,  owner  of  the  animal,  if  known, 
the  fact  of  giving  the  notice,  and  that  48  hours 
have  passed  since  such  notice  was  given  or 
posted,  and  that  the  animal  or  animals  still 
remain  in  the  pound  unclaimed.  Section  7 
provides  that  the  mayor  shall  then  direct  the 
sergeant  to  advertise  and  sell  said  animals, 
and  prescribes  the  mode  of  advertisement;  and 
further  directs  that  the  sergeant  shall  make 
return  to  the  maj'or  of  his  proceedings,  and 
shall  pay  all  surplus  money  arising  from  said 
sales  to  the  treasurer;  and  section  9  provides 
that  "any  person  being  the  owner  *  *  * 
of  such  animal,"  who  shall  within  one  year 
show  to  the  mayor  that  he  was  such  owner, 


shall  have  any  surplus  m  the  hands  of  the 
treasurer  arising  from  the  sale  of  such  ani- 
mal paid  over  to  him,  said  surplus  to  be  paid 
on  the  order  of  the  council.  These  ordinan- 
ces, enacted  under  the  power  so  to  do  confer- 
red by  section  29  of  chapter  47  of  the  Code, 
appear  to  me  to  confer  express  authority  upon 
the  pound-master,  acting  in  connection  with, 
and  under  the  supervision  of,  the  mayor,  to 
impound  cattle  found  running  at  large  in  the 
city,  and  hold  them  until  the  fees  and  costs 
are  paid,  or  to  sell  the  same  after  notice  to 
the  owner,  and,  after  deducting  said  costs  and 
fees,  to  pay  the  residue  to  the  owner  when 
he  asserts  his  claim  thereto.  It  is  true  that 
Dillon  on  Municipal  Corporations  (volume  1, 
§  150)  states  that  "power  to  impound  and 
forfeit  domestic  animals  must  be  expressly 
granted  to  the  corporation,  and  that  laws  or 
ordinances  authorizing  the  officers  of  the  cor- 
poration to  impound,  and,  upon  taking  speci- 
fied proceedings,  to  sell,  the  property,  are  penal 
in  their  nature,  and,  where  doubtful  in  their 
meaning,  will  not  be  construed  to  produce  a 
forfeiture  of  the  property,  but  rather  the  re- 
verse;" and  then  proceeds  to  state  that  the 
powers  conferred  must  be  strictly  folloAved  in 
order  to  constitute  a  valid  sale  of  such  animal. 
In  the  case  under  consideration,  however,  no 
sale  took  place;  the  animal  was  only  taken 
up  and  impounded,  and,  under  section  28  of 
chapter  47,  providing  that  the  council  of  such 
city,  etc.,  shaU  have  power  therein  to  prevent 
cattle  from  going  at  large  therein,  taken  in 
connection  with  section  29  of  the  same  chap- 
ter, authorizing  the  council  to  make  and  pass 
aU  needful  orders,  by-laws,  ordinances,  and 
resolutions,  etc.,  not  conti-ary  to  the  constitu- 
tion and  laws  of  the  state,  to  carry  into  ef- 
fect said  power,  the  impounding  officer,  un- 
der the  provisions  of  the  ordinances  above 
mentioned,  would  surely  have  the  authority 
to  take  up  and  impound  such  animal  found 
running  at  large  at  night  in  the  streets  of  the 
city.i 

•         •         •         *         *  *         * 

1  Part  of  opinion  is  omitted. 


300 


STREETS   AXD    BRIDGES. 


WILSON  V.  BEYERS,  Town  Marshal. 

(32  Pac.  90,  5  Wash.  303.) 

Supreme  Court  of  Washington.     Dec.  1,   1892. 

Appeal  from  superior  court,  Douglas  coun- 
ty;  Wallace  Mount,  Judge. 

Replevin  by  W.  C.  Wilson  against  Robert 
Beyers,  town  marshal  of  the  town  of  Water- 
ville.  Judgment  for  defendant.  Plaintiff  ap- 
peals.    Reversed. 

The  ordinance  referred  to  in  the  opinion 
authorizes  the  town  marshal  to  seize  stock 
running  at  large;  to  post  a  notice  to  that  ef- 
fect; and  if  the  stocli  is  not  claimed,  and 
charges  paid,  in  48  hours,  to  advertise  and 
sell  the  property.  The  question  presented  is, 
does  this  constitute  due  process  of  law? 

Geo.  Bradley,  for  appellant.  Pendergast  & 
Malloy,  for  respondent. 

DUNBAR,  J.  This  cause  was  submitted  to 
the  court  on  an  agreed  statement  of  facts, 
which  involved  the  validity  of  a  ceitain  town 
ordinance  of  the  town  of  Waterville,  (a  town 
of  the  fourth  class.)  providing  for  the  im- 
pounding and  sale  of  cattle  running  at  large 
upon  the  public  streets  of  said  town.  Plain- 
tiff brought  his  action  in  replevin  for  ceii:ain 
cattle  sold  by  defendant,  and  said  to  be  un- 
lawfully detained  by  respondent,  who,  as  city 
marshal  of  said  town  of  Waterville,  seized  the 
cattle  under  the  provisions  of  said  ordinance. 
Defendant  moved  for  judgment  upon  the 
agi'eed  facts,  and  judgment  was  rendered  up- 
on said  motion  in  his  favor,  and  plaintiff  ap- 
peals. The  contention  of  the  appellant  is 
that  the  ordinance  in  question  is  void,  for  two 
reasons:  (1)  That  it  is  in  violation  of  section 
3,  art.  1,  of  the  constitution  of  the  state  of 
Washington;  i  (2)  that  said  ordinance  is  in- 
valid because  the  said  town  had  no  authority 
under  the  statute  to  pass  it. 

So  far  as  the  first  proposition  is  concerned, 
there  can  be  no  doubt  that  the  ovei*whelming 
weight  of  authority  is  opposed  to  the  conten- 
tion of  appellant,  and  that  the  right  to  re- 
strain cattle  from  running  at  large,  under  the 
provisions  of  the  ordinance  passed  in  con- 
formity with  the  grant  of  such  power  by  the 
legislature,  is  a  valid  exercise  of  police  power, 
and  is  not  violative  of  any  constitutional  pro- 
vision. Such  power  has  been  conferred  on 
municipal  corporations  from  time  immemo- 
rial, and  is  founded  on  public  necessity,  protec- 
tion of  public  health,  safety,  and  comfort; 
and  but  few  courts  have  questioned  its  valid- 
ity. There  have  been  many  contentions  over 
the  reasonableness  or  unreasonableness  of  the 
notice  given  by  the  provisions  of  the  ordi- 
nance, and  many  decisions  holding  the  notice 
unreasonable,  but  they  did  not  go  to  the  right 
of  the  city  to  pass  an  ordinance  of  this  char- 
acter. In  other  cases  the  ordinance  provided 
for  the  collection  of  the  damages  which  the 

1  Tonst.  art.  1,  §  3.  provides  that  "no  person 
slmll  he  deprived  of  life,  liberty,  or  property 
without  due  process  of  law." 


stock  may  have  done,  and  some  courts  have 
decided  that  the  question  of  damages  should 
be  submitted  to  a  jury.  This  was  the  ques- 
tion decided  in  Bullock  v.  Gamble,  45  111.  218, 
cited  by  appellant.  In  Willis  v.  Legris,  45 
111.  289,  cited  by  appellant  on  this  point,  the 
question  of  a  penalty  was  involved,  which  is 
not  involved  in  the  case  at  bar.  Sustaining 
the  validity  of  this  and  kindred  ordinances, 
we  cite:  Dill.  Mun.  Corp.  §§  308,  350;  Cooley, 
Const.  Lmi.  §  5SS;  McKee  v.  McKee,  8  B. 
Mon.  433;  Jarman  v.  Patterson,  7  T.  B.  Mon. 
&44;  Brower  v.  Mayor,  3  Barb.  2-54.;  Milhau 
V.  Sharp,  17  Barb.  435;  Van  Wormer  v.  May- 
or, 15  Wend.  2G2;  Mayor  v.  Lanham,  67  Ga. 
753;  Com.  v.  Bean,  14  Gray,  52;  Brophy  v. 
Hyatt,  10  Colo.  223;  Spitler  v.  Young,  63  Mo. 
42;  Folmar  v.  Cui-tis,  86  Ala.  354,  5  South. 
678;  10  Am.  &  Eng.  Enc.  Law,  187,  and  eases  , 
cited.  So  far  as  the  quesition  of  notice  is  con- 
cerned, as  not  being  due  process  of  law,  pro- 
ceedings under  the  ordinance  are  proceedings 
in  rem.  It  is  only  the  property  that  is  dealt  [ 
with;  no  personal  liability  attaches  to  the  own-  I 
er;  and  in  an  action  in  rem  constructive  serv- 
ice by  pubhcation  is  sufficient  to  give  validity 
to  the  judgment  obtained. 

The  second  proposition,  however,  is  more 
troublesome.  The  statute  does  not,  in  express  ■  i 
terms,  grant  the  power  to  the  city  council  of  ' 
cities  of  the  fourth  class  to  pass  ordinances  | 
for  the  impounding  of  cattle  or  other  stock,  or 
to  restrain  them  from  running  at  large  within  ' 
the  city  limits.  The  question,  then,  is,  has  \ 
this  power  been  conferred  by  necessary  impli-  I 
cation?  As  a  general  proposition  it  may  be  I 
said  that  the  city  corix)ration  is  an  inferior 
body,  and  has  no  other  powers  than  those 
which  have  been  expressly  delegated  to  it,  and 
their  appropriate  incidents.  But  what  the  ap- 
propriate incidents  of  expressly  conferred  pow- 
ers are,  is  a  question  exceedingly  difficult  to 
determine,  and  one  which  has  provoked  the 
announcement  of  many  conflicting  opinions  by 
the  courts;  and  the  text  writers,  while  assum- 
ing to  lay  down  rules  for  the  construction  of 
the  statutes  in  such  cases,  leave  the  meaning 
of  the  rule  so  clouded  as  to  render  it  of  little 
assistance  to  the  courts.  Thus,  in  Horr  &  B. 
Mun.  Ord.,  it  is  announced  in  section  18  as 
follows:  "The  charter  or  statute  granting  pow- 
ei*s  to  municii)al  corporations  usually  enumer- 
ates those  which  may  be  exercised.  It  is  a 
general  rule  that  all  powers  not  mentioned  in 
the  enumeration,  and  not  incidental  to  those 
enumerated,  are  not  intended  to  be  included 
in  the  grant.  All  other  ix)wers  are  impliedly 
excluded."  All  tlie  force  of  the  rule  of  con- 
struction tlius  laid  down  is,  however,  anniilled 
by  the  following  proviso:  "But  enumeration 
of  special  cases  does  not.  unless  the  intent  be 
apparent,  exclude  the  implied  power,  any  fur- 
ther than  necessarily  results  from  tlie  nature 
of  tlie  special  provisions."  These  oracular  an- 
nouncements, when  construed  together,  con- 
tain no  rule  of  construction  whatever.  The 
rule  of  strict  construction  against  the  corpora- 
tion is,  however,  thus  laid  down  by  Judge  Dil- 


CONTROL  OF  MANNER  OF  USE  BY   PUBLIC. 


301 


'  Ion  in  his  worl;  on  Municipal  Corporations, 
(section  SO  and  notes:)  "Corporate  power,  be- 
ing delegated,  must  be  strictly  construed  and 
'  plainly  conferred.  Wlienever  a  genuine  doubt 
arises  as  to  the  right  to  exercise  a  certain  pow- 
er, it  must  be  resolved  against  the  corporation, 
and  in  favor  of  the  general  public.  This  rule 
is  most  strictly  observed  in  construing  powers 
that  may  lead  to  an  infringement  of  personal 
or  property  rights."  In  Sniitli  v.  Calloway,  7 
Ind.  SO,  it  is  held  that  the  apphcation  of  the 
above  rule  could  not  be  made  to  defeat  the 
right  to  exercise  powers  which  are  incidental 
to  the  good  government  of  the  community. 
In  City  of  Waco  v.  Powell,  32  Tex.  258,  under 
the  provisions  of  the  statute  granting  to  a  city 
government  general  control  over  the  streets, 
similar  to  the  provisions  of  our  statutes  relat- 
ing to  cities  of  the  fourth  class,  it  was  held 
that  such  power  authorized  the  enactment  of 
an  ordinance  for  the  impounding  of  cattle; 
and  it  was  further  held  that  the  authority  to 
pass  such  an  oi-dinance  existed  not  only  under 
the  general  powers  granted,  but  by  reason  of 
the  power  granting  control  of  the  public  streets 
to  the  city.  "The  right  of  individuals,"  said 
the  court,  "to  convert  the  public  eti-eets  into 
a  hog,  cow,  or  horse  ranch,  by  allowing  or 
compelling  their  stools  to  nin  there,  cannot  ex- 
ist, compatible  with  the  right  of  the  board  of 
aldermen  to  control  the  same  streets.  The 
two  rights  are  inconsistent,  and  cannot  exist 
together."  The  same  doctrine  is  stated  in  sev- 
eral other  cases.  While  other  courts  have  gone 
still  further,  and  held  that  under  a  general  leg- 
islative provision  that  'the  city  or  town  sliall 
have  the  right  to  malie  all  necessai-y  laws,  not 
repugnant  to  the  laws  of  the  state,'  such  city 
has  power  to  pass  ordinances  to  restrain  cat- 
tle fi-om  running  at  large.  Com.  v.  Bean,  14 
Gray,  52.  While  many  other  courts  have  held 
that  such  power  oould  not  be  legiiUy  implied, 
Varden  v.  Mount,  78  Ky.  86;  Collins  v.  Hatch. 
I  18  Ohio,  523.  It  is  pretty  well  conceded  by 
I  the  authorities  that  the  term  "general  wel- 
/fare,"  usotl  in  legislative  grants  of  power  to 
I  municipal  coiijorations,  is  of  broader  scope, 
/  and  confers  greater  powers  on  corporations, 
(  than  such  expressions  as  "peace  and  good  or- 
I  der"  and  "peace  and  good  government,"  and 
that  many  things  are  essential  to  the  public 
welfare  which  belong  neither  to  the  presei-va- 
tlon  of  peace  and  good  order,  nor  to  the  exer- 
cise of  good  government.     The  general  author- 


lOt   / 
rn-  ' 


ity  oonfeiTed  by  our  statute  is  as  follows:  / 
"To  make  all  such  ordinances,  bj--laws,  rules,  / 
regulations,  and  resolutions,  not  inconsistent 
with  the  constitution  and  laws  of  the  state  of 
Washington,  as  may  be  deemed  expedient  to 
maintain  the  peace,  good  government,  and  wel-  / 
fare  of  the  town,  and  its  trade,  commerce,  and  ( 
manufactures,  and  to  do  and  perform  any  and  ■ 
all  other  acts  and  things  necessaiy  or  proper 
to  carry  out  the  provisions  of  tliis  chapter. 
So  that  it  will  be  seen  that  the  statute  not 
only  contains  the  "peace  and  good  gover 
ment"  provision,  but  also  contains  the  "general 
welfare"  provision;  for  the  word  "welfare"  is 
fully  as  comprehensive  as  the  term  "general 
welfare."  And  under  this  provision  we  might 
be  constrained  to  give  it  the  liberal  consti'uc- 
tion  contended  for  by  resiwndent,  were  we 
called  upon  to  construe  the  powers  gi'anted  to 
any  particular  city,  independent  of  its  rela- 
tions to  any  other  provisions  of  the  statute. 
But  under  our  laws  cities  are  divided  into  four 
classes,  and  their  organization,  classification, 
incorporation,  and  powers  are  all  provided  for 
in  one  act;  and  to  arrive  at  the  intention  of 
the  lawmaliers  the  act  must  be  construed  to- 
gether. It  will  be  observed  from  the  perusal 
of  the  act  that  the  same  general  power's  are 
granted  to  cities  and  towns  of  the  third  and 
fourth  classes  as  are  granted  to  cities  of  the 
second  class,  yet  the  statute  expressly  con- 
fers upon  cities  of  the  second  and  third  class- 
es power  to  prevent  and  regulate  the  running 
at  large  of  any  and  all  domestic  animals  with- 
in the  city  limits,  while  this  power  is  not 
specified  in  the  specific  grants  of  power  to 
cities  of  the  fourth  class.  It  also  appears 
that  many  other  powers  are  gx-anted  to  large 
cities  which  were  not  granted  to  the  smaller 
ones,  and  it  was  the  evident  Intention  of  the 
legislature  to  confer  many  powers  on  the 
larger  cities  which  were  withheld  from  the 
smaller  ones.  Considering  the  act  together,  as 
we  must,  we  must  conclude  that  this  provision 
being  made  as  to  one  class  of  cities,  and  not 
as  to  the  other,  it  was  not  the  intention  of  the 
legislature  to  confer  the  power  by  implica- 
tion, and  that  the  ordinance  Is  therefore  In- 
valid.    The  judgment  is  reversed. 

ANDERS,  C.  J.,  and  STILES,  SCOTT,  and 
HOYT,  JJ.,  concur. 

2  1  Hill's  Ann-  St  §  673,  subd.  16. 


302 


STREETS    AND    BRIDGES. 


CITY  OF  ROSEDALE  v.  GOLDING. 
(40  Pac.  2S4,  55  Kan.  167.) 

Supreme  Court  of  Kansas.     April  30,  1895. 

Error  from  district  court,  Leavenworth 
county;    Robert  Crozier,  Judge. 

Action  by  Patrick  Golding  against  the  city 
of  Rosedale  for  injuries  to  his  minor  son. 
Plaintiff  baring  died,  Sarah  Golding,  his  ad- 
ministratrix, was  substituted  as  plaintiff. 
Judgment  for  plaintiff,  and  defendant  brings 
error.     Affirmed. 

Van  Syckel  &  Littick,  for  plaintiff  in  error. 
Byron  Sherry  and  Roland  Hughes,  for  de- 
fendant in  error. 

JOHNSTON,  J.  In  July,  1886,  John  Gold- 
ing, who  was  about  17  years  of  age,  resid- 
ed with  his  father  and  mother  in  Rosedale, 
and  worked  in  a  packing  house  in  Armour- 
dale.  On  one  of  the  principal  streets  of 
Rosedale  there  was  a  bridge  which  spanned 
Turkey  creek,  and  the  boy  passed  over  this 
bridge  in  going  to  and  from  his  work.  On 
the  evening  of  July  1,  18S6,  while  riding  a 
pony  over  the  bridge,  on  his  way  home,  he 
met  a  team,  and,  in  passing,  a  trace  or  some 
other  part  of  the  harness  of  the  other  team 
touched  the  pony,  causing  him  to  flinch  and 
jump  aside,  so  as  to  precipitate  the  boy  and 
pony  off  the  edge  of  the  bridge,  down  into 
the  creek,  a  distance  of  about  12  feet.  The 
boy  suffered  severe  and  permanent  injur> 
from  the  fall.  An  action  was  brought  by 
his  father,  Patrick  Golding,  to  recover  for 
medical  and  surgical  attendance,  hospital 
charges,  loss  of  the  pony,  and  for  the  loss 
of  the  services  of  John  Golding  from  the 
time  of  his  injury  until  he  reached  majority. 
Patrick  Golding  died  soon  after  the  com- 
mencement of  the  action,  and  Sarah  Golding 
was  appointed  administratrix  of  his  estate, 
and  the  action  against  the  city  was  duly  re- 
/  vived  in  her  name.  The  right  of  recovery 
was  based  on  the  neglect  of  the  city  in  per- 
(  mitting  the  bridge  to  remain  without  proper 
.  guards  or  railings  on  the  sides  of  the  sam(\ 
and  that  it  was  therefore  not  in  a  reasouab'y 
I  safe  condition  for  the  use  of  the  public. 
Upon  the  trial  the  jury  returned  a  verdict  in 
favor  of  plaintiff,  and  against  the  city  of 
.  Rosedale,  in  the  sum  of  $2,336.  The  only 
'  serious  contention   of  the  city   in  the  trial 


court  was  that  the  bridge  had  been  built  and  1 
maintained  by  the  county,  and  that,  there-, 
fore,  no  liability  could  arise  against  the  city' 
for  injuries  resulting  from  its  defective  con- 1 
dition.   While  the  bridge  had  been  built  by  the 
county,  it  formed  a  part  of  one  of  the  princi- 
pal streets  of  the  city.    It  was  the  duty  of 
the  city  to  keep  and   maintain  the  streets 
and  the  bridges  thereon  in  such  a  condition 
as  to  be  reasonably  safe  for  persons  travel- 
ing upon  and  over  the  same,  and  it  is  liable 
in   damages   to   any    one    who    suffers   inju- 
ries resulting  from  a  neglect  to  perform  this 
duty.     The  fact  that  the  bridge  was  in  this 
instance  built  by  or  had  been  maintained  at 
the  expense  of  the  county  does  not  relieve 
the  city  from  the  obligation  to  keep  a  biudge 
which  is  upon  one  of  the  public  streets  with- 
in its  corporate  limits  in  a  reasonably  safe 
condition  for  the  traveling  public.     A  claim 
is  made  that  there  was  no  testimony  show- 
ing the  location  of  the  bridge,  but  we  find, 
upon   an    examination   of   the    record,    that 
there  is  abundant  proof  to  show  that  it  was 
within  the  corporate  limits  of  Rosedale,  and 
"a  bridge  situated  wholly  within  the  limits 
of  the  city  is,  with  its  approaches,  a  part  of 
the  public  streets,  and  as  such  within  the 
scope   of  the   city's   duties   and   liabilities." 
City  of  Eudora  v.  Miller,  30  Kan.  494,  2  Pac. 
685.     See,  also,  Commissioners  of  Shawnee 
Co.  V.  City  of  Topcka,  39  Kan.  197,  18  Pac. 
161.     It  is  clear  that  the  city  was  negligent  i 
in  failing  to  place  a  guard  or  rail  along  the  I 
side    of   a    high   bridge   that    was   60    feet  ' 
long.     There  is  a  claim  that  the  boy  was  i 
guilty  of  contributory  negligence  because  he  ' 
knew  or  should  have  known  of  the  danger-  | 
ous  condition  of  the  bridge,  but,  under  the 
testimony,  it  cannot  be  said  as  a  matter  of  / 
law  that   he    was   guilty   of   negligence   in  * 
crossing  the  bridge.    That  question  was  sub-  '■ 
mitted  to  the  jury  under  proper  instructions,  I 
and,   they  having  found  that  the  city  was  / 
negligent  and  the  boy  without  fault,  the  find- ' 
ing  is  conclusive.     The  claim  that  the  ver- 
dict is  excessive  is  not  sustained  by  the  rec- 
ord, and  the  other  questions  which  the  plain- 
tiff in  error  seeks  to  raise  were  not  before 
the  district  court,  and  therefore  are  not  re- 
viewable  in  this  court.     The  judgment  of 
the  district  court  will  be  affirmed.     All  the 
justices  concurring. 


MUNICIPAL    LIABILITY. 


303 


CITY  OF  KANSAS  CITY  v.  LEMEX. 

(6  C.  C.  A.  627.  57  Fed.  905.) 

Circuit  Court  of  Appeals,  Eighth  Circuit.     Sept. 
18,  1893. 

No.  270. 

In  Error  to  the  Circuit  Court  of  the  United 
States  for  the  "Western  District  of  INIissouri. 

At  Law.  Action  by  Frank  Lemen  against 
the  city  of  Kansas  City,  Mo.,  for  wrongfully 
closing  aB  exhibition  held  by  plaintiff  in  said 
city.  Verdict  and  judgment  for  plaintiff.  De- 
fendant brings  eiTor.     Reversed. 

C.  O.  Tichenor,  F.  F.  Rozzelle,  and  Frank  P. 
Walsh,  for  plaintiff  in  error. 
W.  C.  Scarritt,  for  defendant  in  error. 

Before  CALDWELL  and  SANBORN,  Cir- 
cuit Judges,  and  THAYER,  District  Judge. 

THAYER,  District  Judge.  Frank  Lemen 
filed  in  the  United  States  circuit  court  for  the 
western  district  of  Missouri  a  complaint 
against  Kansas  City,  a  municipal  coi-poration 
of  the  state  of  Missouri,  wherein  he  alleged 
substantially  the  following  facts:  That  he  was 
a  citizen  and  resident  of  the  state  of  Kansas, 
and  the  proprietor  of  a  show  and  hippodrome; 
that,  desiring  to  exhibit  said  show  in  Kansas 
City,  Mo.,  on  the  3d  and  4th  days  of  May, 
1892,  he,  before  that  time,  lawfully  acquired 
from  the  owners  of  a  certain  tract  of  land  situ- 
ated withm  the  corporate  limits  of  Kansas  City 
the  riglit  to  give  an  exhibition  thereon,  and  that 
he  took  peaceable  possession  of  said  land  with 
the  consent  of  the  owner,  and  erected  his  tents 
thereon,  and  Uiat  he  also  fully  complied  with 
all  of  the  ordinances  and  regulations  of  the 
city  with  reference  to  such  exhibitions  as  he 
proposed  to  give,  and  obtained  a  license  for  the 
exhibition  from  the  proper  city  authorities,  en- 
titling him  to  give  two  exhibitions,  for  which 
he  paid  to  the  city  $20;  but  that  on  the  day 
appointed  for  the  exhibition,  and  just  before 
it  was  to  begin,  "the  defendant,  Kansas  City, 
acting  by  and  through  its  mayor,  police,  and 
other  duly  constituted  and  authorize<l  agents, 
(the  .«aid  mayor,)  personally  consenting  and 
directing  all  things,  did  willfully,  with  knowl- 
edge that  they  were  acting  wrongfully,  and 
without  right,  and  with  the  intention  to  liarass 
and  oppress  the  plaintiff,  and  to  break  up  and 
I'uin  his  said  business,  with  force  and  vio- 
lence come  upon  said  land,  and  with  threats 
and  violence  did  stop  plaintiff  from  prosecut- 
ing his  said  business,  and  did  put  a  stop  to  the 
exhibition  of  the  said  show,  and  did  then  and 
there  threaten  and  began  to  tear  down  and 
break  and  destroy  plaintiff's  said  tents  and 
property,  and  did  with  force  seize  upon  the 
persdn  of  the  plaintiff  and  arrest  him,  falsely 
pretending  that  he  had  violated  some  city 
ordinance,  *  *  *  and  did  threaten  to  ar- 
rest and  imprison  plaintiff's  employes  unless 
they  desisted  from  carrying  on  plaintiff's  said 
business,  falsely  pretending  that  such  em- 
ployes thereby  were  violating  some  ordinance 


of  Kansas  City;  and  did  stop,  prevent,  and 
warn  the  people  from  coming  into  plaintiff's 
said  show,  and  from  purchasing  tickets  there- 
to, *  *  *  and  compel  and  require  plaintiff 
to  cancel  his  appointments  to  exhibit  his 
show  at  the  place  and  times  aforesaid,  and  to 
remove  all  his  property  and  effects  from  said 
tract  of  land,  and  did  greatly  injure  and  dis- 
credit his  said  business,"  etc. 

The  answer  which  was  filed  by  the  city  to 
such  complaint  (and  we  only  state  the  sub- 
stance thereof,  after  some  portions  had  been 
eliminated  by  a  motion  to  strike  out)  was  as 
follows:  The  city  admitted  its  corporate  ca- 
pacity, and  that  the  plaintiff  intended,  and 
had  in  fact  made  preparations,  to  give  an  ex- 
hibition at  the  time  and  place  stated  in  his 
complaint.  It  denied,  however,  that  the 
plaintiff  had  the  consent  of  the  owner  of  the 
tract  of  land  described  in  his  complaint  to 
give  an  exhibition  thereon,  and  averred,  to 
the  contrary,  that  the  title  to  said  tract  of 
land  was  vested  in  the  city,  as  trustee,  to  be 
held  for  the  purposes  of  a  graveyard,  and  that 
it  had  been  so  vested  and  held  for  more  than 
30  years,  and  that  the  remains  of  many  per- 
sons had  been  buried  therein,  and  that  many 
were  still  entombed  in  said  tract  of  land. 
The  city  further  admitted  that  a  license  was 
issued  by  it  to  the  plaintiff  to  give  an  exhibi- 
tion on  said  ground,  and  that  he  had  paid 
!i;20  therefor;  but  it  averred  that  the  city  had 
no  power  to  issue  a  license  for  a  show  in  a 
graveyard;  and  that  the  police  of  the  city 
had  notified  the  plaintiff,  prior  to  the  in- 
tended exhibition,  that  he  could  not  give  an 
exhibition  on  the  ground  selected,  because  it 
was  a  graveyard,  and  because  an  exhibition 
in  such  place  would  be  a  public  nuisance, 
whereupon  the  plaintiff  had  withdrawn  from 
said  premises,  and  had  removed  his  tents  else- 
where to  a  place  within  the  city,  and  had 
given  an  exhibition  for  two  days  under  the 
license  in  question. 

To  the  foregoing  answer  a  reply  was  filed, 
which  denied  that  the  city  held  the  title  to 
the  aforesaid  tract  of  land  as  a  graveyard. 
It  was  further  averred  that  in  a  previous  suit 
brought  against  Kansas  City  by  certain  per- 
sons who  claimed  title  to  said  tract  of  land 
it  was  judicially  ascertained  and  adjudged 
that  the  lot  was  not  a  gi-aveyard,  and  that  in 
said  suit  said  last-named  claimants  had  recov- 
ered the  property;  and  that  Lemen  acquired 
his  right  to  give  an  exhibition  on  the  premises 
under  the  said  claimants,  they  being  at  the 
time  in  the  quiet  and  peaceable  possession  and 
enjoyment  thereof. 

The  casp  was  tried  before  a  jury  on  the  fore- 
going i-ssues,  and  the  plaintiff  below  recovered 
a  verdict  against  the  city  in  the  sum  of  !?2,200. 
To  reverse  the  judgment  entered  upon  such 
verthct,  the  plaintiff  in  error  has  prosecuted  a 
writ  of  error  to  this  court. 

Several  exceptions  were  talvcn  by  the  plain- 
tiff in  eiTor  to  the  action  of  the  circuit  court 
in  admitting  testimony  and  in  giving  and  re- 
fusing  instructions,   but   the   view   that   we 


304 


MUNICIPAL    LIABILITY. 


have  taken  of  the  case  only  renders  it  neces- 
sary to  determine  whether  the  coui't  erred  in 
refusing  to  charge  that  the  city  could  not  be 
held  liable  for  the  wrong  and  injury  com- 
plained of. 

The  distinction  that  exists  between  the  va- 
rious powers  ordinarily  exercised  by  munici- 
pal corporations  has  been  pointed  out  on  nu- 
merous occasions,  and  is  well  defined.  In 
exercising  certain  powers,  such  corporations 
act  for  the  public  at  large  as  governing  agen- 
cies, and  for  that  reason,  when  so  acting, 
they  cannot  be  held  liable  for  a  misfeasance. 
When  acting  in  a  public  capacity,  as  govern- 
ing agencies,  the  rule  of  respondeat  superior 
has  no  application  to  acts  done  by  the  officers 
of  such  conoorations,  but  the  responsibility 
for  a  wrongful  act  rests  with  the  officer,  and 
not  with  the  municipality.  In  the  exercise  of 
many  other  powers  devolved  ui>on  municipal 
corporations,  commonly  termed  "corporate 
powers,"  such  bodies  act  for  the  special  bene- 
fit of  the  municipalitj-,  or  the  municipality 
derives  some  profit,  emolument,  or  advantage 
from  their  exercise,  and  in  such  cases  the 
municipality  is  liable  for  acts  of  misfeasance 
done  by  its  officers  that  are  positively  inju- 
rious to  individuals. 

In  Maxmilian  v.  Mayor,  62  N.  Y.  160,  Fol- 
ger,  J.,  says:  """There  are  two  kinds  of 
duties  which  are  imposed  upon  a  munici- 
pal corporation:  One  is  of  that  kind  which 
arises  from  the  grant  of  a  special  pow- 
er, in  the  exercise  of  which  the  municipality 
is  as  a  legal  individual.  The  other  is  of  that 
kind  which  arises  or  is  implied  from  the  use 
of  political  rights  under  the  general  law,  in 
the  exercise  of  which  it  is  as  a  sovereign. 
The  former  power  is  private,  and  is  used  for 
private  purposes;  the  latter  is  public,  and 
is  used  for  public  purposes.  *  *  *  In  the 
exercise  of  the  former  power,  and  under  the 
duty  to  the  public  which  the  acceptance  and 
use  of  tbe  power  involves,  a  municipality  is 
like  a  private  corporation,  and  is  liable  for 
failure  to  use  its  power  well,  or  for  any  injury 
caused  by  using  it  badly;  but  where  the  pow- 
er *  *  *  is  conferred  not  for  the  immedi- 
ate benefit  of  the  municipality,  but  as  a  means 
to  the  exercise  of  the  sovereign  power  for  the 
benefit  of  all  citizens,  the  corporation  is  not 
liable  for  nonuser  nor  for  misuser  by  the  pub- 
lic agents."  Citing  Eastman  v.  Meredith,  36 
N.  H.  284. 

The  distinction  thus  referred  to  is  also  rec- 
ognized in  the  state  from  which  this  case 
comes,  (Hannon  v.  County  of  St.  Louis,  62 
Mo.  31?>,  318,)  and  is  stated,  and  supported 
bj'  numerous  citations,  in  Dillon  on  Munici- 
pal Corporations,  (vide  4th  Ed.  §§  96G-068, 
974.) 

/  In  the  case  at  bar  we  feel  constrained  to 
'  hold  that  the  wrongful  act  complained  of  was 
done  by  the  city  under  color  of  a  power  which 
It  exercises  as  a  governing  agent  for  the  bene- 
fit of  the  public  at  large,  and  not  for  the  ad- 
vantage of  the  inhabitants  of  Kansas  City, 
except  as  they  form  a  part  of  the  general  pub- 


lic. The  establishment  of  a  public  show,  such  ' 
as  a  menagerie,  circus,  or  hippodrome,  on  a 
tract  of  land  dedicated  to  a  city  or  town  for 
the  pui-poses  of  a  graveyard,  and  actually 
used  as  such,  would  constitute  a  public  nui- 
sance. A  city  has  no  more  right  to  license  a ' 
show  of  that  nature  in  a  graveyard  than  it 
has  to  license  it  to  locate  on  the  public  streets 
and  thoroughfares;  and  we  entertain  no 
doubt  that  when  a  municipality  undertakes  to 
prevent  or  to  abate  a  nuisance  of  that  kind 
by  means  of  its  police  force  it  is  acting  for 
the  state  as  a  governing  agency,  and  not  mere- 
ly in  the  discharge  of  a  purely  corporate  pow- 
er or  duty. 

In  the  case  of  Haskell  v.  City  of  New  Bed- 
ford, 108  Mass.  208,  211,  Mr.  Justice  Gray, 
then  on  the  bench  of  the  supreme  judicial 
court  of  Massachusetts,  used  the  following 
language:  "Acts  done  by  the  mayor  and  al- 
dermen, or  the  mayor  alone,  to  keep  the 
streets  clear  of  obstructions,  are  acts  done 
by  them  as  public  officers,  and  not  as  agents 
of  the  city;  and  for  such  acts  the  city  was 
not  liable  to  be  sued;"  citing  Walcot  v. 
Swampscott,  1  Allen,  101;  Griggs  v.  Foote,  4 
Allen,  195;  Barney  v.  Lowefi,  98  Mass.  570; 
and  Fisher  v.  Boston,  104  Mass.  87. 

In  a  comparatively  recent  case — Culver  v. 
City  of  Streator,  130  lU.  238,  22  N.  E.  810^ 
it  was  held  that  the  city  was  not  liable  for 
the  negligent  act  of  one  of  its  police  officers 
while  endeavoring  to  enforce  an  ordinance 
forbidding  dogs  to  run  at  large  without  being 
muzzled,  for  the  reason  that  in  the  making 
and  enforcement  of  the  ordinance  the  city 
was  acting  merely  as  agent  of  the  state  in  the 
discharge  of  duties  imposed  by  law  for  the 
promotion  of  the  general  welfare.  The  court 
said  that  the  ordinance  was  passed  in  pursu- 
ance of  the  police  power  vested  in  the  munici- 
pality, and  that  acts  performed  in  the  exer- 
cise of  that  power  were  done  in  a  public  ca- 
pacity as  a  governing  agency,  and  not  for  the 
special  advantage  of  the  municipality. 

It  is  also  very  generally  held  that  a  city  is  ) 
not  liable  for  wrongful  acts  committed  by  its  ' 
police  officox's  in  enforcing  city  ordinances,  or  ' 
in  making  arrests  for  alleged  violations  of  . 
law  or  local  ordinances,  or  while  endeavoring 
to  suppress  an  unlawful  assemblage,  because 
while  acting  in  such  matters,  police  oflicers 
are  not  mere  servants  of  the  municipality, 
and  the  rule  of  respondeat  superior  does  not  j 
apply.     Buttrick  v.  City  of  Lowell.  1  Allen, 
172;   Fox  V.  Northern  Liberties,  3  Watts  &  S. 
103;   Cahvell  v.  City  of  Boone,  51  Iowa,  687, 
2  N.  W.  614;    Odoll  v.  Schroeder,  58  111.  353; 
Elliott  V.  Philadelphia,  75  Pa.  St.  347;    Dar- 
gan  V.  Mobile,  31  Ala.  469;    Little  v.  City  of 
Madison,  49  Wis.  605,  6  N.  W.  249;    Tram- 
mell  V.  Russellville,  34  Ark.  105;    Worley  v. 
Inhabitants,  88  Mo.  106;    Dill.  Mun.  Corp.  § 
975. 

We  can  entertain  no  doubt,  therefore,  that\ 
for  the  acts  complained  of  in  the  present  case 
there  is  no  right  of  redress  against  the  city,  I 
assuming  them  to  have  been  done  or  author-/ 


MUNICIPAL    LIABILITY. 


305 


fzed  by  the  city,  as  stated  In  the  plea,  for  the 
purpose  of  preventing  a  public  exhibition  on 
a  tract  of  land  dedicated  and  used  as  a  grave- 
yard. The  act  of  the  municipality  in  that 
behalf  was  an  exercise  of  a  power  vested  in 
it  to  promote  the  general  welfare,  as  contra- 
distinguished from  those  corporate  powers 
which  it  exercises  for  the  special  advantage 
of  the  municipality. 

It  was  said  in  the  course  of  the  oral  argu- 
ment that  the  plea  interposed  by  the  city, 
that  the  tract  of  land  in  question  was  a  grave- 
yard, and  that  the  city  had  acted  with  a  view 
of  preventing  its  desecration,  was  a  mere  pre- 
tense; that  in  fact  it  had  some  ulterior  pur- 
pose in  view,  and  was  seeking  some  private 
gain  or  advantage,  when  it  committed  the 
wrongful  acts  charged  in  the  complaint.  With 
reference  to  this  statement,  it  is  sutRcient  to 
say  that  no  such  suggestion  is  found  in  the 
pleadings.  To  the  plea  that  the  premises 
\sere  held  in  trust  by  the  city  as  a  graveyard, 
that  the  license  issued  by  the  city  conferred 
no  right  to  give  an  exhibition  at  the  place  in 
question,  and  that  the  city  had  acted  solely 
with  a  view  of  preventing  a  public  nuisance, 
the  plaintiff  merely  replied  that  it  wat.  not  a 
ABB.CORP.— 20 


graveyard,  and  that  that  fact  had  been  judi- 
cially ascertained  and  adjudged  in  a  previous 
suit,  whereto  the  city  was  a  party.  We  think, 
therefore,  that  the  suggestion  above  mention- 
ed is  of  no  avail  to  the  defendant  in  error  on 
this  record.  We  must  take  it  for  granted 
that  the  plea  interposed  by  the  city  was  made 
in  good  faith,  and  correctly  states  the  pur- 
pose whicli  inspired  its  action. 

Furthermore,  if  it  be  true,  as  suggested,  that 
the  city  knew  that  the  premises  were  not  a 
graveyard,  and  that  they  were  in  fact  private 
property,  and  that  it  had  some  ulterior  ob- 
ject in  view,  and  intended  to  wrong  and  op- 
press the  plaintiff,  then  it  is  dithcult  to  escape 
the  conclusion  that  the  acts  said  to  have 
been  committed  by  the  police  with  the  sanc- 
tion of  the  maj'or  were  so  utterly  beyond  the 
scope  of  any  corporate  power  vested  in  the 
municipality,  that  it  could  not  be  held  liable 
on  that  ground.    Dill.  Mun.  Corp.  §§  968-970. 

Our  conclusion  is  that  the  circuit  court  err- 
ed in  refusing  to  direct  the  jury  to  find  a  ver- 
dict in  favor  of  the  city,  wherefore  the  judg- 
ment of  the  circuit  court  is  reversed,  and  thb 
cause  remanded,  with  directions  to  grant  a 
new  trial. 


306 


MUNICIPAL    LIABILITY. 


SNIDER  T.  CITY  OF  ST.  PAUL. 

(53  N.  W.  763,  51  Minn.  466.) 

Supreme  Couil  of  Minnesota.     Dec.  2,  1892. 

Appeal  from  district  court,  Ramsey  county; 
Kelly,  Judge. 

Action  by  Jennie  Snider  against  the  city  of 
St.  Paul  for  damages  for  injuries  resulting 
from  defendant's  negligence.  Judgment  for 
defendant.     Plaintiff  appeals.     Affirmed. 

B.  H.  Scbriber,  for  appellant.  D.  W.  Law- 
ler,  J.  C.  Michael,  and  Davis,  Kellogg  &  Sev- 
erance, for  respondent. 

jSHTCHELL,  J.  The  complaint  alleges  that 
the  city  of  St.  Paul  and  the  comity  of  Ram- 
sey owned  and  possessed,  as  tenants  in  com- 
mon, a  building  known  as  the  "Courthouse 
and  City  Hall;"  that  they  negligently  con- 
stinicted  the  entrance  to  one  of  the  eleva- 
tor shafts  in  an  unsafe  manner;  also  that 
their  servant  in  charge  of  the  elevator  han- 
dled it  negligently,  whereby  the  plaintiff  was 
injured.  As  one  of  its  defenses,  the  city 
pleaded  the  various  statutes  regulating  the 
construction,  custody,  and  use  of  the  building, 
particularly  Sp.  Laws  1881,  c.  376,  and  Sp. 
Laws  1889,  c.  64.  Briefly  stated,  the  act  of 
1881  created  a  special  courthouse  commission, 
consisting  of  the  mayor  of  the  city  of  St. 
Paul  (who  was  ex  officio  a  member)  and  five 
other  persons,  to  be  appointed  by  the  judges 
of  the  district  court  of  Ramsey  county.  This 
commission  was  to  prepare  plans  for  a  build- 
ing for  the  use  of  the  city  and  county  "for  a 
city  hall  and  county  courthouse,  and  for  offi- 
ces for  the  city  and  county  officers,  and  such 
other  public  uses  as  may  be  deemed  expedi- 
ent," and  submit  the  same,  together  with  an 
estimate  of  the  cost,  to  the  board  of  county 
commissioners  and  the  common  council  of  the 
city  for  their  approval.  Upon  their  approval 
of  the  plans  the  commission  was  to  proceed 
and  construct  the  building,  which  was  to  be 
paid  for  out  of  the  proceeds  of  a  fund  called 
"the  courthouse  and  city  hall  building  fund," 
which  was  to  be  raised  by  the  issue  and  sale 
of  bonds  of  the  city  and  of  the  county.  The 
act  further  provided  that  the  city  and  county 
"shall  hold  the  land  occupied  and  needed  for 
said  building,  together  with  the  building  which 
may  be  erecteil  thereon,  in  common,  and  for 
the  public  uses  aforesaid."  The  act  of  1889 
provided  that  when  completed  the  building 
should  be  placed  in  charge  of  a  committee  of 
seven,  to  be  appointed  as  follows:  Three  an- 
nually by  the  president  of  the  common  council, 
and  three  annually  by  the  chairman  of  the 
board  of  county  commissioners;  and  that  the 
mayor  of  the  city  sliould  be  ex  officio  a  mem- 
ber and  the  chairman  of  the  committee.  This 
committee  was  to  have  entire  charge  of  the 
building,  with  power  to  appoint  such  janitor, 
custodian,  and  other  employes  as  they  should 
deem  necessary  for  the  proper  care  and  man- 
agement of  the  building.  The  answer  also  al- 
leges that  the  city  has  never  had  any  control 


over  either  the  construction  or  custody  of  the 
building,  which  have  been  entirely  under  the 
direction  and  c-ontrol  of  the  courthouse  com- 
mission and  committee  referred  to.  The  court 
overruled  a  demurrer  to  this  defense,  placing 
its  decision  on  two  general  grounds:  First, 
that  the  special  courthouse  commission  which 
constructed  the  building,  and  the  committee 
which  lias  charge  of  it,  were  independent  bod- 
ies, and  not  the  agents  or  servants  of  the  city, 
and  hence  that  the  city  was  not  liable  for  their 
negligence;  second,  that  even  if  the  city  had 
controlled  the  construction  and  custodj*  of  the 
building,  it  would,  in  so  doing,  have  been  per- 
forming merely  a  governmental  duty  for  the 
benefit  of  the  public,  for  any  negligence  in  the 
performance  of  which  no  private  action  would 
lie.  The  decision  might  perhaps  be  sustained 
on  either  ground,  but,  as  we  are  clearly  of 
opinion  that  the  second  is  well  taken,  it  is  un- 
necessary to  consider  the  first. 

The  common-law  rule  is  that  no  private  ac- 
tion can  be  maintained  against  a  municipal 
corporation  for  the  neglect  of  a  public  duty 
imposed  upon  it  by  law  for  the  benefit  of  the 
public,  and  from  the  performance  of  which  the 
corporation  receives  no  pecuniary  profit.  As 
resi>ects  what  are  sometimes  called  "quasi  mu- 
nicipal corporations,"  such  as  counties,  town- 
ships, and  school  districts,  this  is  the  rule  ev- 
erywhere, without  exception.  But  as  respects 
what  are  called  "municipal  corporations  prop- 
er," such  as  cities  and  incoriiorated  villages, 
the  general  current  of  the  authorities  is  to  the 
effect  that,  even  in  the  absence  of  an  exjiress 
statute,  they  may  be  impliedly  liable  for  acts 
of  misfeasance  or  neglect  of  duty  on  the  part 
of  its  officers  and  agents,  while  for  the  same 
or  a  similar  wrong  there  is  no  such  liability 
resting  on  quasi  municipal  coi-porations.  The 
most  noted  and  familiar  instance  of  this  is  the 
different  rule  applied  to  towns  and  counties 
as  respects  liability  for  negligence  in  not  keep- 
ing highways  in  repair,  and  that  applied  to 
iucorporatetl  cities  for  negligence  in  failing  to 
keep  streets  in  repair.  But  respecting  the  prin- 
ciple upon  which  to  rest  this  distinction,  or  as 
to  the  nature  of  the  duties  to  which  it  extends, 
the  courts  seem  to  be  much  perplexed,  and 
their  decisions,  often  in  conflict  with  each  oth- 
er, leave  the  subject  in  some  confusion.  The 
ground  for  the  distinction  is  not  to  be  found 
in  the  mere  fact  that  one  is  created  by  special 
charter,  while  the  other  is  not,  for  both  are 
alike  sulxlivisions  of  the  state,  created  for  pub- 
lic, although  local,  govern  in  en  tjil  purposes. 
Nor  is  it  to  be  found  in  the  fact  that  the  one 
is  given  greater  powers  than  the  other,  unless 
the  power  is,  not  for  public  governmental  pur- 
poses, but  to  engage  in  some  enterprise  of  a 
quasi  private  nature,  from  which  the  munici- 
pality will  derive  a  pecuniaiy  benefit  in  its 
coiiiorate  or  proprietary  capacity;  as,  for  ex- 
ample, power  to  build  gasworks  or  water- 
works, to  furnish  gas  or  water  to  be  sold  to 
consumers,  or  to  build  a  toll  bridge,  from  each 
of  which  the  city  would  derive  a  revcTtue.  In 
this  class  of  cases  it  is  generally  held  that  cor- 


MUNICIPAL    LIABILITY. 


507 


porations  are  liable  for  wrongful  or  negligent 
acts,  because  done  in  what  Is  termed  their 
"private"'  or  "coiporate"  character,  and  not  in 
their  public  capacity  as  governing  agencies,  in 
the  discharge  of  duties  imposed  for  the  public 
■or  general  benefit.  But  it  is  also  generally  held 
that  they  are  not  hable  for  negligence  in  the 
performance  of  a  public,  govermnental  duty 
imjiosed  upon  them  for  public  benefit,  and 
from  which  the  municipality  in  its  coi-i)orate 
or  proprietary  capacity  derives  no  pecuniary 
profit.  The  liability  of  cities  for  negligence  in 
not  keeping  streets  in  repair  would  seem  to  be 
an  exception  to  this  general  rule,  which  we 
think  the  courts  would  do  better  to  rest  either 
upon  certain  special  considerations  of  public 
policy  or  upon  the  doctrine  of  stare  decisis 
than  to  attempt  to  find  some  strictly  legal  prin- 
ciple to  justify  the  distinction.  And,  as  al- 
ready suggested,  as  to  what  are  public  and 
governmental  duties  and  what  are  private  or 
corporate  duties  the  courts  are  not  in  entire 
hannony,  and  their  decisions  do  not  furnish  a 
definite  line  of  cleavage  between  the  two.  Nor 
shall  we  attempt  to  fix  any  such  line  of  uni- 
versal application.  For  a  quite  full  discussion 
of  the  subject,  see  Dill.  Mun.  Corp.  c.  23;  and 
for  an  exhaustive  review  of  the  authorities, 
see  Hill  V.  Boston,  122  Mass.  344.  In  Dosdall 
V.  County  of  Olmsted,  30  Minn.  96,  14  N.  W. 
458,  we  held  that  a  county  is  not  liable  for  the 
negligence  of  its  board  of  county  commission- 
ers in  failing  to  repair  a  courthouse,  the  duty 


of  maintaining  a  courtliouse  being  a  public 
one,  and  for  a  wholly  public  puriwse.  In  Bry- 
ant V.  City  of  St.  Paul,  33  Minn.  2S9,  23  N.  W. 
220,  we  held  that  the  city  was  not  liable  for 
the  negligence  of  the  board  of  health  in  the 
discharge  of  its  duties,  the  same  being  public 
and  governmental,  and  not  coiporate,  in  their 
character.  And,  for  a  like  reason,  in  Grube  v. 
City  of  St.  Paul,  34  Minn.  402,  2G  N.  W.  228, 
we  held  that  the  city  was  not  liable  for  the 
negligent  acts  of  members  of  its  fire  depart- 
ment. We  fail  to  discover  any  distinction  in 
the  character  in  this  respect  of  the  duty  per- 
formed by  the  citj'  in  maintaining  a  board  of 
health,  a  fire  department,  or  a  police  depart- 
ment, and  that  performed  in  providing  and 
mainraining  a  citj-  hall  for  the  use  of  the  pub- 
lic ofiicers  of  the  city.  The  city,  in  its  private 
or  corporate  capacity,  derives  no  more  pe- 
cuniary benefit  from  the  one  than  it  does  from 
the  others,  and  in  each  case  alike  the  purpose 
is  a  public  and  governmental  one.  The  duty 
which  a  city  performs  in  providing  a  city  hall 
for  the  use  of  the  public  officers  of  the  city 
is  exactly  the  same  in  its  nature  as  that  per- 
formed by  a  county  in  providing  a  courthouse 
for  the  use  of  the  county  officers.  The  incon- 
sistency of  holding  that  the  county  of  Ramsey 
is  not  liable,  (as  must  be,  under  the  Dosdall 
Case,)  but  that  the  city  is,  would  be  forcible 
illustrated  by  the  sipecial  facts  of  this  case. 
Our  conclusion  is  that  the  city  is  not  liable. 
Order  affirmed. 


303 


MUNICIPAL    LIABILITY. 


BARRON  T.  CITY  OF  DETROIT. 

(54  N.  W.  273,  94  Mich.  601.) 

Supreme  Court  of  Michigan.     Feb.  10,  1893. 

Error  to  circuit  court,  WasTie  county;  Cor- 
nelius J.  ReiUy,  Judge. 

Action  by  Adolphus  Barron  against  the 
city  of  Detroit  to  recover  for  personal  inju- 
ries. Judgment  for  plaintiff.  Defendant 
brings  error.    Affirmed. 

John  J.  Speed,  for  appellant.  I.  G.  Hum- 
phrey and  Orla  B.  Taylor,  (Edwia  F.  Conely, 
of  counsel,)  for  appellee. 

LONG,  J.  The  facts  in  this  case  are  not 
in  dispute.  It  appears  that  in  January,  1890, 
by  resolution  of  the  common  councU,  the 
city  engineer  was  instructed  to  prepare  plans 
for  the  construction  of  a  market  building. 
The  Dlans  were  prepared  and  submitted, 
m  response  to  the  resolution,  and  the  board 
of  public  works  was  directed  to  advertise 
for  proposals  for  constructing  the  building 
in  accordance  therewith.  Proposals  were 
advertised  for,  and  the  board  of  public  works 
reported  that  Patrick  Dee  was  the  lowest  bid- 
der; and  by  instruction  of  the  common  council 
the  board  entered  into  a  contract  for  the  con- 
struction of  the  building  with  him,  which  con- 
tract was  confirmed  by  the  council.  The  plans 
were  prepared  by  a  draughtsman  in  the  office 
of,  and  under  the  supervision  of,  the  city  engi- 
neer. The  building  was  an  open  stinicture,  on 
ii'on  columns  about  15  feet  apart,  surmounted 
by  a  roof  composed  of  wood  and  iron.  It  was 
built  in  the  form  of  a  cross;  being  about 
300  feet  one  way,  and  400  feet  the  other. 
The  columns  rested  upon  stone  piers,  but 
were  not  anchored.  At  the  time  the  plans 
were  prepared,  the  propriety  of  anchoring 
the  columns  was  discussed  by  the  draughts- 
man and  engineer.  The  draughtsman  thought 
it  ought  to  be  anchored,  but  the  engineer 
thought  the  construction  strong  enough,  and 
his  opinion  was  followed.  He  claims,  how- 
ever, to  have  looked  the  plans  over  hurried- 
ly, and  did  not  examine  them  carefully,  for 
the  reason  that  a  competent  superintendent 
was  to  be  employed,  and  that  the  building 
would  be  properly  constructed  imder  him, 
and  if  any  defect  existed  the  omission  would 
be  supplied  as  the  Avork  progressed.  The 
superintendent  was  appointed,  and  the  work 
carried  on  imder  the  contractor.  Before  it 
was  completed  some  members  of  the  board 
of  public  works  expressed  the  opinion  that 
the  structure  was  dangerous,  and  would  go 
down  in  a  wind;  and  on  the  advice  of  the 
city  engineer  it  was  examined  by  architects, 
and  upon  their  recommendation  several 
braces  were  added,  to  strengthen  it.  One 
of  the  architects  thus  called  says  that  he 
advised  the  inserting  of  some  strips,  and 
putting  bolts  through  them,  and  anchoring 
them  down;  that  it  should  be  anchored  in 
some  way.     Those  suggestions  were  referred 


by  the  board  of  public  works  to  tbe  contract- 
or, and  he  placed  extra  braces  in  the  roof, 
but  did  not  anchor  the  columns.  It  was  tes- 
tified by  some  of  the  architects  that  in  such 
buildings,  in  tliis  part  of  the  country,  40 
poxmds  to  the  square  foot,  wind  pressure, 
is  usually  allowed ;  and  it  was  further  shown 
that  tlie  velocity  of  the  wind,  to  exert  40 
poimds'  pressure,  is  90  to  100  miles  in\  hour. 
On  December  23,  1890,  in  a  wind  blowing 
about  50  miles  an  hour,  this  market  building 
fell;  no  other  buildings  in  the  vicinity  be- 
ing affected;  so  that  it  is  apparent  that  the 
fault  was  in  the  failure  to  auclior  the  col- 
umns. The  plaintiff  was  injured  by  the 
falling  of  the  building.  It  is  conceded  that 
at  the  time  he  was  lawfully  upon  the  prem- 
ises, having  paid  the  usiial  license  fee  re- 
quired and  collected  by  the  city.  His  claim 
for  damages  having  been  refused  by  the  com- 
mon council,  tills  suit  was  brought,  and  he 
was  awarded  damages  in  the  sum  of  .?1,000. 
By  the  charter  of  the  city  of  Detroit  the 
common  council  is  authorized  to  erect  and 
mauitaia  market  houses;  erect  markets  and 
market  places. 

It  is  contended  by  counsel  for  the  city 
that  when  the  common  council  of  the  city 
authorized  the  making  of  plans  and  specifi- 
cations for  the  market  building,  and  direct- 
ed tbe  making  of  the  contracts  for  its  con- 
struction, it  performed  a  purely  legislative 
function;  that  the  fault  which  occasioned 
the  collapse  of  the  building  was  in  the  plan, 
which  failed  to  provide  for  anchoring  it  so 
that  it  could  not  be  lifted  from  its  foundation 
by  the  wind;  that  there  was  evident  miscal- 
culation as  to  the  weight  being  sufficient 
to  keep  it  in  place.  /Coimsel  insists  that  the 
fault  is  with  legislative  action,  and  therefoi'e 
a  suit  grounded  upon  it  is  grounded  upon  a 
wrong  attributable  to  the  legislative  body 
itself,  as  the  determination  to  construct  the 
public  work,  and  the  prescribing  of  the 
plans,  are  matters  of  legislation  on  behalf 
of  the  city,  imder  the  direction  of  its  leg- 
islative body;  that  in  carrying  out  the  plans 
there  may  be  negligence  attributable  to  min- 
isterial officers,  but  negligence  in  the  plans 
themselves  must  be  attributable  to  the  body 
that  devised,  ordered,  or  adopted  them,— and 
therefore  the  action  cannot  be  maintained, 
under  the  principle  applied  in  Larkin  v.  Sag- 
inaw Co.,  11  Mich.  88;  Detroit  v.  Beckman, 
34  Mich.  12G;  City  of  Lansing  v.  Toolan.  37 
Mich.  152;  Davis  v.  City  of  Jackson,  61  INIich. 
530,  28  N.  W.  Rep.  520.  This  contention 
would  imdoubtedly  be  correct,  if  the  city 
had  boon  acting  piirely  in  a  matter  of  pub- 
lic concei'n,  in  its  governmental  capacity  or 
character,  and  tlie  cases  cited  would  then 
be  appUcablo.  /  In  Larkin  v.  Saginaw  Co. 
the  plaintiff  sought  to  recover  for  injuries 
caused  by  a  defective  bridge,  and  it  was 
held  that  the  county  was  not  liable  for  the 
acts  of  the  board  of  supervisors  in  the  ex- 
ercise of  its  legislative  power.  In  Detroit  v. 
Beckman,  City  of  Lansing  v.  Toolan,  and  Da- 


MUNICIPAL    LIABILITY. 


309 


vis  V.  City  of  Jackson,  the  actions  were  for  in- 
juries caused  by  defects  in  public  highways. 
In  each  of  these  cases  it  was  held  that,  when 
complaint  is  made  that  the  original  plan 
of  a  public  work  is  so  defective  as  to  ren- 
der the  work  dangerous  when  completed, 
the  fault  is  witli  legislative  action,  and  for 
which  no  action  can  be  maintained.  Ash- 
ley V.  Pt.  Huron,  35  Mich.  '2'.M,  is  to  the  same 

/o^)  effect.  Judge  Dillon,  in  his  work  on  Munic- 
igal  Corporations,  (3d  Ed.,  §  GG,)  states  the 
rule  as  follows: /a  municipal  corporation 
"possesses  a  double  character:  The  one,  gov- 
ernmental, legi.slative,  or  public;  the  other, 
in  a  sense,  proprietary  or  private.  The  dis- 
tinction between  these,  though  sometimes 
ditticidt  to  trace,  is  highly  important,  and 
is  frequently  referred  to,  particularly  in  the 
cases  relating  to  the  implied  or  common- 
law  liability  of  municipal  corporations  for 
the  negligence  of  their  servants,  agents,  or 
officers,  in  the  execution  of  corporate  duties 
and  powers.  On  this  distinction,  indeed, 
rests  the  doctrine  of  such  impliecl  liability. 
In  its  governmental  or  public  character,  the 
corporation  is  made,  by  the  state,  one  of  its 
instruments,  or  the  local  depositary  of  cer- 
tain limited  and  prescribed  political  powers, 
to  be  exercised  for  the  public  good  on  behalf 
of  the  state,  rather  than  for  itself.  In  thia 
respect  it  is  assifuilated,  in  its  nature  and 
functions,  to  a  county  corporation,  which, 
as  we  have  seen,  is  purely  part  of  the  gov- 
ernmental machinery  of  the  sovereignty 
which  creates  it.  Over  all  its  civil,  political, 
•or  governmental  powers  the  authority  of  the 
legislature  is,  in  the  nature  of  things,  su- 
preme and  without  limitation,  imless  the 
limitation  is  foimd  in  the  constitution  of  the 
particular  state.  But,  in  its  proprietaiy  or 
private  character,  the  theory  is  that  the 
powers  are  supposed  not  to  be  conferred, 
primarily  or  chiefly,  from  considerations  con- 
nected with  the  government  of  the  state  at 
large,  but  for  the  private  advantage  of  the 
compact  community,  which  is  incorporated 
as  a  distinct  legal  personality,  or  corporate 
individual;  and  as  to  sucli  powers,  and  to 
property  acquired  thereunder,  and  contracts 
made  with  reference  thereto,  the  corpora- 
tion is  to  be  regarded,  quo  ad  hoc,  as  a  pri- 
vate corporation,  or  at  least  not  public  in  the 
sense  that  the  power  of  the  legislatme  over 
It,  or  the  rights  represented  by  it,  is  omnip- 
otent.'^ Tliis  rule  is  supi)orted  by  a  great 
number  of  authorities  from  the  several 
states,  and  from  the  decisions  of  the  supreme 
court  of  the  United  States,  in  the  note  to 
the   section   above   quoted.    It  is,   however, 

/^j  challenged  by  Denip,  0.  J.,  in  Darlington 
V.  INIa^or,  31  N.  Y.  1G4./H:e  asserts  the  im- 
limited  power  of  the  legislature  over  mu- 
nicipal corporations  and  their  property,  and 
maintains  that  such  corporations  are  alto- 
gether public,  and  all  their  rights  and  pow- 


ers public  in  their  nature,  and  that  their 
property,  though  held  for  income  or  sale, 
and  unconnected  with  any  use  for  the  pur- 
pose of  municipal  government,  is  under  the 
control  of  the  legislature,  and  not  within  the 
provisions  of  the  constitution  protecting  pri- 
vate property.  He  denies  the  distinction 
between  the  public  and  private  fimctions 
of  city  government,  and  maintains  that,  as 
respects  the  state,  all  their  powers  and  func- 
tions are  pubhc.^This  doctrine,  however, 
has  not  obtained  m  this  state;  but  it  is  held 
that  cities  are  mentioned  in  our  constitution, 
in  connection  with  local  corporations,  which 
are  put  upon  a  proper  basis  entirely  beyond 
legislative  interference,  so  far  as  local  in- 
dependence of  action  is  concerned.  Opin- 
ion of  Campbell,  C.  J.,  in  People  v.  Hurlbut, 
24  Mich.  SG.  In  B(Xii-d  of  Park  Com'rs  v. 
Common  Coimcil  of  De^troit,  2S  Mich.  228, 
it  was  said  by  Mr.  Justice  Cooley:/"We 
also  referred  in  People  v.  Hurlbut  to  sev- 
eral decisions  in  the  federal  suprt^me  court, 
and  elsewhere,  to  show  that  municipal  cor- 
porations considered  as  commimities  en- 
dowed with  peculiar  functions  for  the  bene- 
fit of  their  own  citizens  have  always  been 
recognized  as  possessing  powers  and  capac- 
ities, as  being  entitled  to  exemptions,  dis- 
tinct from  those  which  they  possess  or  can 
claim  as  conveniences  in  state  government. 
If  the  authorities  are  examined,  it  will  be 
found  that  these  powers  and  capacities  and 
interests  which  are  acquired  under  them 
are  usually  spoken  of  as  private,  in  contra- 
diction to  those  in  which  the  state  is  con- 
cerned, and  which  are  called  pubUc;  thus 
putting  these  corporations,  as  regards  all 
such  powers,  capacities,  and  interests,  sub- 
stantially on  the  footing  of  private  corpora- 
tions."^ This  same  distinction  was  also  made 
in  Detroit  v.  Corey,  9  Mich.  1G4;  Mayor  v. 
Park  Com'i-s,  44  Mich.  602,  7  N.  W.  Rep.  180; 
Niles  Waterworks  v.  City  of  Niles,  59  Mich. 
324,  2G  N.  W.  Rep.  525;  Cooper  v.  Detroit, 
42  Mich.  584,  4  N.  W.  Rep.  2G2.  Under  the 
facts  in  the  case,  the  city  must  be  held  to 
the  same  degree  of  care,  not  only  in  the  con- 
struction, but  in  the  plan  of  the  construction 
itself,  as  woidd  a  private  corporation  or  an 
individual.  Under  the  provisions  of  the  char- 
ter granting  the  power  to  erect  it,  there 
was  no  imperative  duty  cast  upon  the  city 
to  provide  for  a  market  building.  It  could 
build  it  or  not,  as  the  council  might  deter- 
mine. It  is  not  like  the  case  of  a  pubUc 
highway,  or  the  building  of  a  bridge,  where 
the  duty  is  cast  upon  the  mimicipality,  by 
general  law,  to  build  and  maintain  them. 
Had  tliis  building  been  owned  bj'  an  indi- 
vidual or  a  private  corporation  tlie  liability 
of  either  for  this  accident  would  not  have 
been  questioned,  under  the  facts  stated.  The 
judgment  must  be  athrmed,  with  costs.  The 
other  justices  concurred. 


c^; 


310 


MUNICIPAL  LIABILITY. 


TATE  V,  CITY  OF  GREEXSBOROUGH  et  al. 

(19  S.  E.  767,  114  N.  C.  392.) 

Supreme  Court  of  North  Carolina.     May  22, 
18^. 

Appeal  from  superior  court,  Guilford  coun- 
ty; H.  G.  Connor,  Judge. 

Action  by  Mattie  M.  Tate  against  the  city 
of  Greensborough  and  John  L.  King  and 
Hugh  L.  Scott  to  recover  damages  for  remov- 
ing trees  standing  on  the  outer  edge  of  the 
sidewalk  in  front 'of  plaintiff's  residence. 
Judgment  for  defendants,  and  plaintiff  ap- 
peals.    Affirmed. 

R.  M.  Douglas,  L.  M.  Scott,  and  J.  A.  Bar- 
ringer,  for  appellant.  Dillard  &  King  and 
James  E.  Boyd,  for  appellees. 

BURWELL,  J.  It  is  contended  by  the 
plaintiff,  first,  that,  even  admitting  that  the 
act  of  which  she  complains  (the  destruction 
of  shade  trees  standing  on  the  outer  edge  of 
the  sidewalk  in  front  of  her  residence,  in 
the  city  of  Greensborough)  was  done  by  the 
duly-authorized  agents  of  that  municipal  cor- 
poration, she  is  still  entitled  to  recover  for 
the  damage  done  to  her  property  by  the  cut- 
ting down  of  these  trees,  because  his  honor 
has  found  that  they  did  not  obstruct  the 
passage  of  persons  on  the  sidewalk,  that  the 
public  convenience  did  not  require  their  de- 
struction, and  that  the  mudhole  in  the  street, 
for  the  removing  of  which  this  act  seems 
to  have  been  done,  could  have  been  remedied 
without  cutting  them  down.  This  phase  of 
the  case  presents  for  our  consideration  this 
question:  /Can  the  courts  review  the  exer- 
cise by  the  city  of  Greensborough  of  its  pow- 
er to  rei'air  and  improve  its  streets,  and  re- 
move what  it  considers  obstructions  therein, 
and  find  and  declare  that  certain  trees  in 
the  streets  of  that  city,  which  the  municipal 
aiithorities  honestly  believed  were  injurions 
and  obstr active  to  the  public,  were  in  fact 
not  so,  and  upon  such  findings,  there  being 
no  allegation  of  negligence  or  of  any  want 
of  good  faith  on  the  part  of  the  city,  award 
damages  to  an  abutting  proprietor,  the  com- 
fort of  whose  home  has  been  lessened  by  the 
removal  of  the  trees?/ 

The  street  in  which  these  trees  stood  was 
Idcdicated  to  public  use  as  a  .street  by  those 
'under  whom  the  plaintiff  claims  title.    Hold- 
ing control  of  this  sti-eet  by  reason  of  its 
dedication    only,    the   city    nevertheless    has 
'  exactly  the  same  rights  therein,  and  respon- 
I  sibilities  therefor,  as  if  it  had  been,  by  deed 
'  of  the  owner,  conveyed  to  the  corporation  for 
I  use   for   sti-eet  purpo.ses,   or  had  been  con- 
I    demned   and    taken    for   those  purposes   ac- 
cording to  the  provisions  of  the  charter;  and 
I    the   rights   of   the   plaintiff   therein    are    no 
'    greater  than  if  it  had  been  so  conveyed,  or 
so  condemned  and  taken.     Now,  the  respon- 
sibilities   that    counties    and    townships    as- 
sume, or  are  put  imder  by  the  law,  in  rela- 
tion to  their  highway.s,  is  very  different  from 


those  of  cities  and  towns  in  relation  to  their 
streets.  It  is  required  that  roads  shall  be 
kept  in  repair,  and  certain  individuals,  upon 
whom  is  cast,  in  one  way  or  another,  the 
burden  of  seeing  that  these  repairs  are  made, 
can  be  indicted  for  failing  to  perform  this 
duty;  but  the  municipality  (county  or  town- 
ship) is  not  held  liable  for  damage.s  that  may 
result  from  the  road's  being  out  of  order, 
or  obstructed.  Cities  and  towns,  however, 
are  held  to  strict  pecuniary  accountability 
for  the  condiuon  of  their  streets.  They  are 
not  political  divisions  of  the  state,  made 
by  it  for  convenience  in  its  government  of 
the  whole,  but  are  corporations  chartered, 
presumably,  at  the  request  of  the  inhabi- 
tants, and  granted  privileges,  and  charged 
with  corresponding  responsibilities.  Among 
the  very  gravest  of  the  pecuniary  responsi- 
bilities that  the  law  imposes  on  cities  and 
towns  is  liability  for  damages  to  persons 
and  property,  caused  by  a  defective  or*  im-, 
properly  obstructed  street.  Bunch  v.  Eden- 
ton,  90  N.  C.  431;  White  v.  Commissioners, 
Id.  437.  Hence  it  is  that  the  law  gives  to  all 
such  corporations  an  almost  absolute  dis- 
cretion in  the  maintenance  of  their  streets; 
considering,  it  seems,  as  is  most  reasonable,  f 
that  wide  discretion  as  to  the  manner  of 
performance  should  be  conferred  where  re- 
sponsibility for  improper  performance  is  sa 
heavily  laid.  An  illustration  of  this  is  the 
provision  of  the  Code  (section  3S03)  that  the 
commi.ssioners  of  towns  "shall  provide  for 
keeping  in  proper  repair  the  sti'eets  and 
bridges  of  the  town  in  the  manner  and  ta 
the  extent  they  may  deem  best."  We  think 
that  under  its  charter,  and  under  the  general 
law  of  the  state  (2  Code,  c.  G2),  the  city  of 
Greensborough  was  clothed  with  such  dis- 
cretion in  the  control  and  improvement  of 
its  streets;  and  if  damage  come  to  the  plain- 
tiff by  reason  of  acts  done  by  it.  neither  neg- 
ligently nor  maliciously  and  wantonly,  but 
in  good  faith,  in  the  careful  exerci.se  of  that 
discretion,  it  is  damnum  absque  injiu-ia. 
Smith  V.  Corporation  of  Washington,  20 
How.  13o;  Brush  v.  City  of  Carbondale.  7S 
111.  74;  City  of  Pontiac  v.  Carter,  32  Mich. 
1G4. 

It  is  not  to  be  denied  that  the  al)utting  pro- 
prietor has  rights  as  an  individual  in  the 
street  in  his  front,  as  contradistinguished 
from  his  rights  therein  as  a  member  of  the 
corporation,  or  one  of  the  public.  The  tree» 
standing  in  the  street  along  the  sidewalk  are, 
in  a  restricted  sense,  his  trees.  If  they  are 
cut  or  injured  by  an  individual  who  has  na 
authority  from  the  city  to  cut  or  remove 
them,  he  may  recover  damages  of  such  indi- 
vidual. His  property  in  them  is  such  that 
the  law  will  protect  it  from  the  act  of  such  a 
wrongdoer  and  trespasser.  Bliss  v.  Ball,  9{> 
Mass.  597,  and  Graves  v.  Shattuck,  3")  N.  H. 
257,  are  illustrations  of  this  principle.  In 
the  former  case,  the  court,  speaking  of  the 
injury  done  by  defendant  to  the  trees  in  the 
sti-eet  in  front  of  plaintiff's  lot,  said:    "If  the 


PERFORMANCE  OF  DISCRETIONARY  DUTIES. 


311 


defendant  thought  thoy  were  a  nuisance,  he 
mifjht  have  complained  to  the  selectmen,  and 
it  was  for  them  to  decide  the  question  wheth- 
er they  should  be  removed.  *  *  *  The  de- 
fendant had  no  authority  to  remove  them, 
nor  were  the  jury  authorized  to  decide  the 
question  whether  they  oujjht  to  remain." 
And  thus  that  authority  seems  abundautly  to 
sustain  the  position  that  it  is  not  for  a  coui-t 
and  jury  to  i-eview  the  conduct  of  the  proper 
municipal  authorities  in  such  a  matter  as 
that  now  under  consideration.  In  Barnes  v. 
District  of  Columbia,  91  U.  S.  540,  it  is  said: 
"The  authorities  state,  and  our  own  knowl- 
edge is  to  the  effect,  that  the  care  and  super- 
intendence of  streets,  alleys,  and  highways, 
the  rejridation  of  gi'ados,  and  the  opening  of 
new  and  the  closing  of  old  streets,  are  pe- 
culiarly municipal  duties.  No  other  power 
can  so  wisely  and  judiciously  control  this 
sul)ject  as  the  authority  of  the  immediate  lo- 
calit.v  where  the  work  is  to  be  done." 
/  The  wisdom  of  this  rule  is  well  illustrated 
by  this  action.  Complaints  were  made,  it 
seems,  by  citizens,  that  these  ti'ces  were  inju- 
rious to  the  public  way.  and  in  their  effects. 
perhaps,  to  the  public  health.  The  proper 
authcirities  of  the  city,  clothed  with  the  pow- 
er to  repair  the  streets  and  protect  the  public 
health,  listened  to  these  complaints,  and  in 
the  exercise  of  their  best  judgment,  so  far  as 
appears,  decided  that  the  interest  of  the  com- 
munity required  their  removal.  The  proposi- 
tion of  the  plaintiff  is  that  a  jury  shall  judge 
of  the  correctness  of  this  conclusion,  and  'f 
they  find  that  the  officials  committed  what 
they  think  was  an  error,  they  and  the  city 
shall  be  mulcted  in  damages.  "The  mainten- 
ance of  such  an  action  would  transfer  to 
court  and  jury  the  discretion  which  the  law 
vests  in  the  municipality;  but  transfer  them, 
not  to  be  exercised  directly  and  finally,  but 
indirectly  and  partially,  by  the  retroactive 
effect  of  pimitive  verdicts  upon  special  com- 
plaints.'V  Cooley,  Const.  Lim.  (Gth  Ed.)  2.j5. 
Phifer  4.  Cox,  21  Ohio  St.  218,  which  plain- 
tiff's counsel  cited  in  their  brief,  related  to  a 
county  road,  and  tlie  alleged  wrongful  cut- 
ting of  plaintiff's  hedge  was  done  by  a  pri- 
vate citizen.  So  it  has  no  application,  we 
think,  to  this  case,  and  belongs  to  the  same 
class  of  decisions  as  Graves  v.  Sliattuck  and 
Bliss  V.  Ball,  supra.  Bills  v.  Belknap,  3G 
Iowa,  583  (also  cited),  relates  to  the  cutting 
down  of  trees  standing  in  a  highway  in  the 
counti-y,  and  the  action  was  to  restrain  the 
supervisor  of  the  road.  In  Everett  v.  City  of 
Council  Bluffs,  4<5  Iowa,  GO  (also  relied  on  by 
plaintiff),  wliich  was  a  suit  to  enjoin  the  de- 
fendant from  cutting  down  certain  shade 
trees  in  front  of  plaintiff's  lot,  the  petition  al- 
leged that  the  trees  were  "perfectly  safe  and 
sound,  and  afforded  no  obstruction  to  the 
free  use  of  the  street  and  sidewalk,"  and 
stated  reasons  why  they  should  not  be  re- 
moved. The  defendant  made  no  answer, 
and,  as  the  court  said,  the  allegations  of  the 
petition   were   taken  as  true;    and  so  it  ap- 


peared, by  the  admission  of  the  defendant, 
that  its  officers  were  about  to  do,  under  its 
orders,  a  wrong  to  the  plaintiff,  which,  be- 
cause it  conceded  that  the  public  interest  did 
not  in  any  way  require  it  to  be  done,  would 
be  wanton  and  unnecessary.  We  think  that 
case  is  clearly  distinguishable  from  the  one 
now  under  consideration.  The  principles 
which  govern  in  this  matter  are  well  stated 
in  Chase  v.  Crty  of  Oshkosh,  81  Wis.  313,  51 
N.  W.  5G0,— an  action  for  damages  for  cut- 
ting down  shade  trees,  very  similar  to  tlie  one' 
we  are  considering, — from  which  we  make 
the  following  quotation ty^  "The  right  of  the 
public  to  the  use  of  the  street  for  the  pur- 
poses of  travel  extends  to  the  portion  set 
apart  and  used  for  sidewalks,  as  well  as  to 
the  way  for  carriages,  wagons,  etc.,  and,  in 
short,  to  the  entire  width  of  the  street  upon 
which  the  land  of  the  lot  owner  abuts.  As 
against  the  lot  owner,  the  city,  as  ti'ustee  of 
the  public  use,  has  an  undoubted  right,  when- 
ever its  authorities  see  fit,  to  open,  and  fit  for 
use  and  travel,  the  street  over  which  the  pub- 
lic easement  extends,  to  the  entire  width; 
and  whether  it  will  so  open  and  improve  it 
or  whether  it  should  be  opened  or  improved, 
is  a  matter  of  discretion,  to  be  determined  by 
the  public  authorities  to  whom  the  charge  and 
control  of  the  public  interests  in  and  over 
such,  easements  are  committed.  With  this 
discretion  of  the  authorities,  courts  cannot 
ordinarily  interfere,  upon  the  complaint  of 
the  lot  owner,  so  long  as  the  easement  con- 
tinues to  exist.  *  *  *  The  pul)lic  use  is  the 
dominant  interest,  and  the  public  authorities 
are  the  exclusive  judges  when,  and  to  what 
extent,  the  streets  shall  be  improved.  Courts 
can  interfere  only  in  cases  of  fraud  and  op- 
pression, constituting  manifest  abuse  of  dis- 
cretion. It  necessarily  follows  that,  for  the 
performance  of  this  discretionary  duty  by 
the  city  officers  in  a  reasonal)le  and  prudent 
manner,  no  action  can  be  maintained  against 
the  city.'*/ 

Having  shown,  as  we  think,  that  the  plain- 
tiff cannot  recover  of  the  city,  we  come  to 
consider  her  second  proposition, — that  she  can 
recover  damages  of  "the  other  defendants. 
King  and  Scott,  not  as  the  servants  or  agents 
of  the  city,  but  as  independent  tort  feasors," 
as  it  is  stated  in  the  brief  of  her  counsel.  In 
other  words,  it  is  proposed  that  the  cause  of 
action,  as  against  the  city,  shall  be  aban- 
doned, and  the  cause  proceed  against  the 
other  defendants,  upon  the  theory  that  they 
had  no  authority  from  the  city  to  do  the  acs 
complained  of.  We  think  the  power  given 
to  the  city  over  the  streets  could  be  dele- 
gated to  a  street  committee  composed  of 
members  of  the  board  of  aldermen,  as  this 
one  was;  that  this  action  was  the  action  of 
that  committee,  and  therefore  of  the  city; 
and  that  just  as  these  individuals  would  have 
been  answerable  in  damages  to  the  plaintiffs, 
Lf  the  act  had  been  beyond  the  power  of  the 
municipality,  so  they  are  not  liable  if  the  act  , 
was  within  those  powers.     All  went  to  show 


312 


MUNICIPAL  LIABILITY. 


that  the  Individual  defendants  were  acting 
as  agents  and  officers  of  the  city.  They  so 
assert.  The  city  so  insists,  and  distinctly 
ratifies  their  act.  Therefore,  as  the  city  has 
done  no  legal  wrong,  neither  have  they.  Af- 
firmed. 

AVERY,  J.  (dissenting).  It  Is  always  safe 
to  recur  to  fundamental  principles.  It  is 
perilous  to  refrain  from  going  to  the  foun- 
tain head,  where  the  controversy  arises  out 
of  an  attempt  of  a  public  agency  to  use 
or  destroy,  without  compensation,  what  is 
claimed  to  be  private  property.  The  very 
question  involved  in  the  case  at  bar  is,  what 
are  the  rights,  respectively,  of  the  servient 
and  dominant  owners, — the  town  and  the 
abutting  proprietor  in  a  street, — what  passed 
to  the  public  with  the  easement,  and  what 
residuary  interest  remained  in  the  own- 
er after  the  appropriation  by  the  mimicipal- 
ity  for  corporate  purposes?  The  taliing  of 
private  property  for  a  public  higliway,  lilie 
any  other  exercise  of  the  right  of  eminent 
domain,  can  be  justified  only  on  the  ground 
of  public  necessity, — that  it  is  essential  in  or- 
der to  subserve  the  convenience  or  promote 
the  prosperity  of  the  gi'eat  body  of  people, 
comprehended  under  the  general  designation 
of  the  "public,"  to  give  them  the  use  of  it 
for  certain  specified  pm'poses.  Cooley, 
Const.  Lim.  643.  Where  an  easement  is  ac- 
quired, whether  by  grant,  dedication,  or  con- 
demnation, nothing  more  passes  to  the  pub- 
lic than  the  power  to  use  the  land  strictly  in 
furtherance  of  the  objects  for  which  the  leg- 
islatm-e  authorized  its  appropriation.  Ex- 
cept in  so  far  as  his  right  of  enjoyment  is 
restricted  by  the  inhibition  against  his  inter- 
ference with  its  use  for  the  particular  pubhc 
purposes,  all  of  the  rights  of  ownership  are 
still  retained  by  the  holder  of  the  servient 
tenement  The  other  estate  dominates  and 
overshadows  his  right  only  so  far  as  is  nec- 
essary to  subserve  the  ends  for  which  its 
privilege  has  been  granted.  The  residuary 
rights  of  the  abutting  owner  in  a  street  are 
somewhat  more  resti-icted  than  those  of  an 
adjacent  proprietor  in  a  public  road,  because. 
In  contemplation  of  law,  tlie  damages  for 
the  taking  are  measured  by  the  extent  of  the 
public  use,  and  the  consequent  limitation  of 
private  enjoyment  by  the  servient  owner. 

I  may  safely  lay  it  down  as  a  general  prop- 
osition that,  when  the  legislatm-e  permits 
private  property  to  be  tal^en  by  a  public  or 
quasi  public  corporation,  the  state  intends 
that  it  shall  be  appropriated  only  for  corpo- 
rate pm-poses,— such  uses  as  may  be  neces- 
sary in  order  to  enable  the  public  agency  to 
perform  its  duties  to  the  state,  and  enjoy 
the  compensatory  privileges  granted  to  it. 
Whatever  rights  of  property  in  streets  do 
not  pass,  from  the  very  nature  of  a  munici- 
pality, as  necessary  to  the  discharge  of  its 
public  functions,  or  as  inseparable  incidents 
to  the  franchise  granted,  remain  in  the  abut- 
ting proprietor,   reserved  by  implication  of 


law  for  his  benefit,  whether  the  city  or  town 
has  acquired  the  fee  or  an  easement,  either 
by  grant,  dedication,  or  condemnation,  and 
whether  the  line  of  such  abutting  owner  ex- 
tends to  the  margin  or  middle  of  the  sti'eet. 
The  abutting  proprietors  have  a  qualified 
property  in  a  sti-eet,  which  entitles  them  to 
make  "any  beneficial  use  of  the  soil  of  such 
highway  which  is  consistent  with  the  prior 
and  paramount  rights  of  the  public  therein 
for  street  purposes  proper."  2  DiU.  Mun. 
Corp.  §  65Gb.  "If  they  own  the  fee  to  the 
center  line  of  the  sti'eets,"  says  Judge  Dillon, 
"their  rights  therein  are  legal  in  their  nature. 
If  they  own  the  fee  to  the  line  of  the  streets, 
their  rights  in  the  street  are  in  the  nature 
of  equitable  easements  in  fee,  but,  in  ex- 
tent, are  substantially  the  same  as  when 
the  fee  is  in  them,  subject  to  public  use." 
Id.  §§  603,  6G4,  GGl;  Bliss  v.  Ball,  99  Mass. 
597.  "Where  one's  land  is  bounded  on  a  pub- 
lic highway,"  says  Judge  Cooley  in  his  work 
on  Torts  (page  31S),  "it  presumptively  ex- 
tends, not  to  the  outer  line,  but  to  the  mid- 
dle of  the  roatl;  and  his  supreme  dominion 
embraces  the  whole,  qualified  only  by  the 
public  easement."  In  this  respect  there  is 
a  striking  analogy  between  abutting  and 
riparian  owners  of  the  fee,  in  that  a  certain 
incidental,  qualified  property  attaches  in  the 
highway,  whether  it  be  a  public  road  or 
navigable  water.  Bond  v.  Wool,  107  N.  G. 
139,  12  S.  E.  2S1;  Yates  v.  Milwaukee,  10 
Wall.  497.  The  street  consists  of  the  car- 
riage way  and  sidewalk,  the  enjoyment  and 
use  of  both  of  which  are  recognized  by  the 
courts  as  the  right  of  the  abutting  proprie- 
tor, of  which  he  cannot  be  deprived  by  the 
municipalitj',  or  even  by  the  legislatm'e,  with- 
out his  consent,  and  without  adequate  com- 
pensation. Moose  V.  Carson,  104  N.  C.  431, 
10  S.  E.  689;  State  v.  Brown,  109  N.  C.  805, 
13  S.  E.  940.  A  municipal  corporation, 
though  authorized  by  statute  to  widen 
streets,  can  do  so  only  where  some  mode  of 
ascertaining  the  damage  done  by  taking  ad- 
ditional land,  and  of  enforcing  its  payment, 
is  pi-escribed  by  law,  aud  pursued  by  the 
corporation.  On  the  other  hand,  a  city  or 
town  has  no  right  to  sell  a  portion  of  a 
street  in  front  of  an  abutting  owner,  or  to 
diminish  its  width  in  any  way,  without  com- 
pensation, and  contrary  to  his  wishes. 
Moose  V.  Carson,  supra.  It  being  conceded 
that  the  abutting  owner  has  a  tiualified  prop- 
erty iu  the  street  on  his  front,  the  only  safe 
criterion  by  which  to  test  the  justice  of  a 
claim  to  any  specified  right  is  the  consist- 
ency or  inconsistency  of  its  exercise  with  the 
use  of  the  highway  bj'  the  municipality  for 
corporate  purposes.  The  original  owner  of 
the  soil  surrenders  his  absolute  property  in 
his  frontage  for  a  qualified  one,  in  full  con- 
templation of  the  authority  of  the  corpora- 
tion, whenever  it  may  become  necessary,  for 
public  purposes,  either  to  elevate  or  lower 
the  level  of  the  street,  though  he  maj'  suffer 
some  inconvenience   from  any   alteration   of 


PERFORMANCE  OF  DISCRETIONARY  DUTIES. 


313 


the  grade;    and  cousequeutly  it  is  supposed 
that  such  damase  was  considered  when  the 
cost    of    the   easement   was    estimated    and 
paid,  or  that  a  donation  was  made,  subject 
to   the   contini;fency   of  suffering   such   loss. 
Guided   by   the   principle  stated,   this   court 
held  that,  for  loss  caused  by  excavation  on 
embankments  made  in   changing  the   grade 
of  a  street,  the  abutting  owner  could  not  re- 
cover, unless  the  injury  was  directly  due  to 
want  of  skill  or  negligence  in  the   excava 
tion  of  the  work.     Meares  v.  Wilmington,  . 
Ired.    73;    Wright  v.   Wilmington,    92   N.    r. 
156.     In  such  cases  it  was  considered  tha; 
the  alteration  in  the  highway  was  not  a  nc,. 
taking,  but  a  use  of  it  that  was  in  conte;:: 
plation    at    the    time    when    the    easemei: 
passed  to  the   public.     Cooley,    Const.    Lim 
p.  G71;    2  Dill.  Mun.  Corp.  §  992,  and  note. 
Even  this  rule,  however,  has  proven  so  op 
pressive  in  practice  as  to  lead,  in  some  o: 
the  states,  to  the  enactment  of  statutes  an 
the  amendment  of  constitutions  so  as  to  cri 
ate  a  liabilitj'  as  for  an  original  taking,  whe- 
there  is  a  change  of  grade,  such  that  dam 
age  ensues  to  an  adjacent  proprietor.     Le^^• 
is,   Em.   Dom.  c.   8,   especially   section   221 
"The  public,"  says  Mr.   Lewis,   "acquire  n. 
right  in  the  use  of  springs  in  the  highwa. 
and  cannot  divert  them  for  the  purpose  u: 
making  a  public  watering  place.     The  owne. 
of  the  fee  cannot  change  the  location  of  tli 
road  where  it  crosses  his  land.     He  may  di 
posit   materials  on  the  surface  of  the   way 
plant  shade  or  ornamental  trees  therein,  se: 
hitching  posts,  etc.    *    *    *    The  public  can 
not  place  structures  on  the  soil  which  havt 
no  connection  with  its  use  as  a  highway." 
Lewis,  Em.  Dom.  p.  759;    Deaton  v.  County 
of  Polk,  9  Iowa,  594.     "Subject  to  the  para- 
mount right  of  the  public,  tlie  rights  of  the 
owner  of  the  fee  remain  the  same  as  though 
the   public  easement   did   not  exist.    *    *    '■'■ 
As  against  the  public,  he  may  make  any  use 
of  the  land   which  does  not  interfere  with 
the   use  and   enjoyment  of  the  same  as   :; 
highway."     Lewis,  Em.  Dom.  p.  758,  §  58! ». 
The   learned   author   claims    for    the   owner 
of  the  fee  the  right  to  plant  trees  in   the 
highway,  both  for  shade  and  ornament;    ami 
it  cannot  be  denied  that  he  acquires  a  quali- 
fied property  in  the  fruit  of  his  labors,  when 
they   grow  so   as   to  subserve   his   purpose. 
It  is  conceded  to  be  the  law  in  North  Caro- 
lina that  such  shade  ti'ees  can  be  cut  down 
by  a  city   when  the  grade  is  changed,  be- 
cause they  are  planted  in  contemplation  of 
the  principle  that  the  power  to  grade  is  a 
continuing  one,  and  that,   "of  the  necessity 
or  expediency  of  its  exercise,  the  governing 
body  of  the  corporation,  and  not  the  courts, 
is  the  judge."     2  Dill.  Mun.  Corp.  §  GSG,  and 
note.     But  though  a  tree  be  planted  subject 
to  the  right  of  the  city  to  destroy  it,  in  the 
exercise  of  this  continuing  power  to  improve 
its  streets,  it  is  nevertheless  the  property  of 
the  owner  of  the  fee;    and,  when  no  change 
of  grade  is  ordered,  the  governing  authori- 


ties of  the  town  have  the  right  to  remove  it 
only  on  the  ground  that  it  obstructs  the 
highway,  and  is  therefore  a  public  nuisance, 
or  after  condemnation,  and  the  payment  of 
compensation  ascertained  ia  a  mode  pointed 
out  by  law. 

Mr.  Wood,  in  his  work  on  Nuisances  (sec- 
tion 294),  not  only  agrees  with  such  other 
able  and  discriminating  text  writers  as  Jud.ge 
Dillon,  in  declaring  that  the  adjacent  owner 
has  a  property  in  trees  planted  in  his  front, 
but  in  maintaining  that  the  municipal  au- 
thorities are  responsible  if  they  deal  with 
them  as  nuisances,  when  in  fact  they  do  not 
interfere  witti  the  ordinary  use  of  the  streets 
and  sidewalks.  He  says:  "Sliade  trees  set 
in  a  street  or  highway  without  authority  of 
law,  will  eh  in  any  measure  obstnict  travel, 
are  a  nuisance.  *  *  *  But  they  can  be  re- 
moved only  by  the  owner  or  the  public  au- 
thorities, and,  if  they  [the  public  authorities] 
remove  them  when  they  do  not  obstruct  trav- 
el, they  are  liable  to  the  owner  in  damages 
therefor."  See,  also,  Clark  v.  Dasso,  34  :Mich. 
86.  If  damage  can  be  recovered,  it  must,  ex 
necessitate,  be  assessed  by  a  jury,  since  it 
will  not  be  contended  that  it  is  a  taking  in 
the  exercise  of  the  right  of  eminent  donuiin, 
for  which  the  law  provides  any  other  nuxie 
of  fixing  the  compensation.  Thus,  we  find 
that  all  of  the  leading  text  writers  concur 
in  construing  the  decisions  which  I  cite  to 
sustain  my  view,  and  to  have  settled  the  prin- 
ciples in  this  country,  generally,  that  a  shade 
tree  is  the  property  of  the  abutting  owner, 
which  cannot  be  destroyed,  as  a  nuisance, 
unless  it  hinders  the  free  use  of  the  highway 
by  the  public,  and  where  it  is  not  an  ob- 
struction the  owner  may  recover  damages  of 
the  authorities  of  a  city  for  its  wrongful  re- 
moval. In  treating  of  the  power  to  prevent 
and  abate  nuisances,  Judge  Dillon  says: 
"This  authority,  and  its  summary  exercise, 
may  be  constitutionally  conferred  on  the  in- 
corporated place,  and  it  autliorizes  its  council 
to  act  upon  that  which  comes  within  the 
legal  notion  of  a  nuisance;  but  such  power, 
conferred  in  general  terms,  cannot  be  taken 
to  authorize  the  extrajudicial  condemnation 
and  destruction  of  that,  as  a  nuisance,  which, 
in  its  nature,  situation,  or  use,  is  not  such. 
*  *  *  It  is  a  doctrine  not  to  be  tolerated 
in  this  country  that  a  municipal  corporation, 
without  any  general  laws  of  the  city  or  of 
the  state,  within  which  a  given  structure  can 
be  shown  to  be  a  nuisance,  can,  by  the  mere 
declaration  that  it  is  one,  subject  it  to  re- 
moval by  any  person  supposed  to  be  ag- 
grieved, or  even  by  the  city  itself."  1  Dill. 
Mun.  Corp.  §  374;  Everett  v.  City  of  Council 
Bluffs,  46  Iowa,  66;  Yates  v.  Milwaukee,  10 
Wall.  498;  State  v.  Mayor,  29  N.  J.  Law, 
170;  Cooley,  Const.  Lim.  242,  741,  note;  State 
V.  Mott,  61  Md.  297;  Ward  v.  City  of  Little 
Rock,  41  Ark.  526;  Northwestern  Fertilizing 
Co.  v.  Village  of  Hyde  Park,  70  111.  634;  Horr. 
&  B.  Mun.  Ord.  §  252. 

If  the  destruction  of  the  trees,  complained 


314 


MUNICIPAL  LIABILITY. 


of,  is  to  be  impii'^od  to  the  defendants,  it  is 
not  contended  that  there  was  any  other  law 
authorizing  the  act  tlian  the  general  autliori- 
ty  to  prevent  nuisances.  Whether  a  city 
acts,  in  such  a  case  as  this,  under  the  general 
power  to  abate  nuisances,  or  under  special 
authority  to  remove  obstructions,  the  rule  is 
the  same.  "Power  to  a  city,  by  its  charter, 
to  regulate  the  use  of  streets  and  alleys,  and 
to  prevent  and  remove  obstructions  from 
them,  contemplates  the  preservation  of  actual 
ways  agauist  nuisances  which  interfere  with 
their  accustomed  use,  and  until  they  have 
become  actually  open  obstructions  thereon, 
under  a  claim  of  title  apparent  on  the  face 
of  the  prosecution,  cannot  be  pimished  under 
an  ordinance  in  the  municipal  tribunal,  but 
the  rights  of  the  parties  must  be  determined 
in  the  public  courts."  2  Dill.  Mun.  Corp.  p. 
809,  §  GSO,  and  note;  Jackson  v.  People,  9 
Mich.  Ill;  Phifer  v.  Cox.  21  Ohio  St.  248. 
While,  in  the  exercise  of  the  continuing  au- 
thority to  raise  or  lower  the  grade  of  streets, 
the  law  requires  of  the  city  onlj^  good  faith, 
care,  and  skill,  the  arbitrary  destruction  of 
property,  or  what  is  eouivaleut  to  its  confis- 
cation, cannot  be  justified  on  the  ground 
that  the  act  was  done  under  the  honest  belief 
that  it  was  a  lawfid  abatement  of  a  nuisance, 
because  it  obstnicted  the  highway.  If  the 
tree  was  property,  and  was  not  planted  in 
contemplation  of  legal  authority  in  the  city, 
express  or  implied,  to  cut  it  down  at  will,  but 
only  in  view  of  the  possibilitj^  of  its  destruc- 
tion as  a  nuisance,  then,  unquestionably,  the 
plaintiff  would  have  the  right  to  have  any 
disputed  facts,  such  as  the  question  where 
the  tree  was  standing,  ti-ied  by  a  jury,  with 
instruction  from  the  court  as  to  what  consti- 
tuted nuisance  such  as  the  city  might  sum- 
marily abate.  Good  faith  will  not  protect 
an  officer  who  commits  a  trespass  without 
the  color  of  authority,  and  thereby  leave 
remediless  one  whose  property  is  desti-oyed 
without  reason  or  necessity.  Elliott,  Roads 
&  S.  p.  521.  An  obstruction  is  defined  as 
"anything  which,  without  reasonable  neces- 
sity, impedes  the  use  of  the  streets  for  lawful 
purposes."  Horr.  &  B.  Mim.  Ord.  §  230. 
"When  adjacent  owners  retain  the  fee  in  the 
streets,  the  corporation  has  no  right  to  de- 
stroy the  ti'ees,  unless  they  grow  within  the 
street,  or  so  as  to  obstruct  traffic."  Id.  §  229; 
Bliss  V.  Ball,  99  Mass.  .597;  White  v.  God- 
frey, 97  Mass.  472;  Tainter  v.  Mayor,  19  ^. 
.1.  Eq.  4G;  Cross  v.  Mayor,  18  N.  J.  Eq.  313; 
Bills  V.  Belknap,  36  Iowa,  583;  Everett  v. 
City  of  Coiuicil  Bluffs,  supra.  Whether  trees 
in  a  public  highway  are  a  public  nuisance 
"is  a  question  of  fact  for  the  jury,"  in  aU 
cases.  Phifer  v.  Cox,  21  Ohio  St.  248.  If  an 
overseer  cuts  down  a  tree  which  does  not  ob- 
sti'uct  or  interfere  with  the  pablic  use  of  the 
road,  he  is  a  trespasser,  and,  if  he  does  so 
maliciously,  is  liable  to  exemplary  damages. 
Winter  v.  Peterson,  24  N.  J.  Law,  524. 

The  case  of  Chase  v.  City  of  Oshkosh  (Wis.) 
51  N.  W.  5G0,  6  Am.  R.  &  Corp.  Cas.  1,  may 


appear,  upon  first  view  of  it,  to  be  in  con- 
flict with  the  general  current  of  authority, 
and  with  the  cases  we  have  cited,  some  of 
which  are  collated  in  a  note  appended  to  it; 
but,  upon  a  closer  examination,  it  will  ap- 
pear that  the  opinion  rests  upon  the  ground 
that  the  common  council  are,  by  special  pro- 
visions of  the  charter,  to  "protect  the  streets 
from  any  encroachment  or  injm'y,"  and  "to 
prevent,  prohibit,  and  cause  the  removal  of 
all  obstructions  in  and  upon  all  streets  in 
said  city."  The  charter  of  the  city  of  Greens- 
borough  provides  for  condemnation  of  prop- 
erty for  the  purpose  of  changing  or  widen- 
ing the  streets  already  in  existence,  and  lay- 
ing out  new  ones,  but  we  find  no  special  war- 
rant for  assuming  the  judicial  function  of  de- 
claring any  obstruction  in  the  whole  street  a 
nuisance.  If  the  legislature  had  constituted 
the  mayor  and  commissioners,  or  the  street 
committee  selected  by  them,  a  special  coui't, 
and  had  empowered  them  to  remove  obstruc- 
tions which,  in  their  judgment,  were  nui- 
sances, we  would  still  have  been  compelled 
to  meet  the  question  whether  the  legislature 
could  in  that  indirect  way  clothe  the  officers 
of  a  municipality  with  the  autliority  to  de- 
stroy such  private  property,  and  deprive  the 
sufferer  of  the  right  to  "the  ancient  mode  of 
trial  by  jury,"  guarantied  to  him,  "in  all 
controversies  respecting  property,"  by  the 
constitution  (article  1,  §  1),  unless  the  trees 
had  been  planted  in  contemplation  of  an  ex- 
press power  conferred  upon  the  town  coun- 
cil to  clear  all  parts  of  the  streets  of  trees. 
This  gi-ave  question  does  not  arise  in  this 
case,  and  the  discussion  of  it  is  therefore  un- 
necessai'y.  When  the  point  shall  be  properly 
presented,  it  will  be  necessary  to  determine 
whether  the  legislature  can  dispense  with  the 
right  of  trial  by  jury  in  any  case  involving 
the  title  to  property,  when  the  litigant  could 
have  claimed  it  imder  the  ancient  common 
law. 

It  seems  that  in  the  recent  case  of 
O'Connor  v.  Telephone  Co.,  13  Can.  Law  T. 
33G,  the  appellate  court  of  Nova  Scotia  has 
held  that  the  rights  of  the  abutting  owner 
of  the  fee  on  a  street  extended  to  the  middle 
of  the  highway,  in  his  front,  and  that  he  had 
a  property  in  ornamental  shade  trees  in  the 
street,  in  his  front,  and  could  maintain  an 
action  against  a  telephone  company  for  dam- 
ages (to  be  assessed,  of  course,  by  a  jury) 
for  mutilating  such  trees.  Says  Lawson 
(Rights,  Rem.  &  Pr.  vol.  3,  p.  1758):  "Ad- 
jacent landowners  may  lawfully  use  the 
space  between  the  carriage  path  and  side- 
walks for  the  gi-owlng  of  trees  for  ornament 
or  use.  Trees  thus  situated  are  in  no  sense 
nuisances,  but  private  property."  But  the 
right  of  property  stands  iipon  the  more  sub- 
stantial ground  of  inexorable  i-cason,  since 
the  city  does  not  appropriate  the  space  be- 
tween the  sidewalk  and  the  street  for  cor- 
porate purposes,  and  the  residuary  right 
of  the  owner  of  the  fee  empowers  him  to  use 
it.     Even   where    the  riglit   is   in  tlie  domi- 


PERFORMANCE  OF  DISCRETIONARY  DUTIES. 


815 


nant  owner  to  extend  its  actual  dominion,  if 
it  become  necessary,  no  sucli  summary  de- 
struction without  reason  is  permitted. 
Where  the  fee  is  condemned  for  a  railway 
for  a  distmce  of  100  feet  on  either  side  of 
the  tracli,  wliile  the  corporation  may  build 
an  additional  track,  if  requisite  for  the  trans- 
action of  its  business,  at  any  time  during 
the  period  of  its  corporate  existence,  or  may 
erect  structures  for  corporate  pm-poses  upon 
the  land  appropriated,  yet  if  the  adjacent 
owner  plant  and  raise  corn  within  the  limit 
of  100  feet,  but  not  upon  the  portion  of  the 
way  actually  occupied  by  the  company,  the 
law  neither  imposes  the  duty,  nor  confers 
the  power,  on  the  latter,  to  cut  down  such 
corn,  as  a  nuisance,  because  it  may  obstruct 
the  view  of  the  engineer,  and  prevent  him 
from  seeing  cattle  approaching  the  line  of 
railway.  AVard  v.  Railroad  Co.,  109  N.  C. 
358,  13  S.  E.  923;  Id.,  113  N.  C.  5GG,  IS  S.  E. 
211.  On  the  other  hand,  the  corporation  may, 
in  that  case,  remove  trees,  because  that  is 
autliorized  by  statute,  lest  they  become  a 
nuisance,  by  falling  upon  the  track.  But 
the  facts  are  found,  and  in  our  opinion  the 
tree  was  not  shown  to  be  a  public  nuisance, 
subject  to  summary  removal  by  the  city,  but 
was  the  property  of  the  plaintiff,  for  the 
willful  desti'uction  of  which  an  action  for 
damage  lies  against  the  ti'espassers,  and 
those  under  whose  authority  they  may  have 
acted.  There  was  no  pretense  of  a  con- 
demnation for  a  public  purpose,  or  of  authoi*- 
Ity  to  take,  if  it  was  private  property,  other 
than  in  the  mode  pointed  out  in  section  60 
of  the  charter, — upon  a  valuation  by  three 
freeholders.  There  was  no  evidence  that 
the  trees  were  unsound,  so  as  to  endanger 
the  safety  of  travelers  on  the  highway,  and 
there  was  no  provision  of  law,  in  or  out  of 
the  charter,  authorizing  the  cutting  down  of 
trees  located  on  the  margin  of  the  sidewalks, 
or  at  any  point  on  the  streets,  to  avert  dan- 
ger to  the  public.  The  authority  to  make 
improvements,  given  in  a  charter,  like  that 
to  widen  the  streets,  was  coupled  with  the 
condition  that  commissioners  should  be  ap- 
pointed to  assess  any  damr.ge  that  might  be 
caused  by  the  changes  made.  In  the  case 
at  bar  the  court  found  as  a  fact  tliat  the 
trees  did  not  obstnict  the  sidewalk,  and,  in 
effect,  that  they  were  not  nuisances,  and, 
ther»>rore,  tliat  there  was  no  authority  for 
destroying  them.  When  such  shade  ti'ees 
neither  impede  the  passage  of  vehicles,  nor 
unreasonably  obstruct  the  sidewalks,  the 
municipal  authorities  may  enact  general  or- 
dinances to  protect  them,  even  against  wan- 
ton injm-y  or  destruction  by  the  owner,  but 
are  not  empowered,  by  orders  or  by-laws, 
to  cause  tliem  to  be  removed,  as  nuisances, 
when,  in  law  and  in  fact,  they  are  not  nui- 
sances. Horr.  &  B.  Mun.  Ord.  §§  2.j2,  229; 
McCarthy  v.  Boston,  13.5  Mass.  197;  Wood, 
Nuis.  §  294.  An  adjacent  owner,  notwith- 
standing an  order  or  ordinance  of  municipal 
authorities  autliorizing  it,   is  entitled   to  re- 


cover damages  for  any  invasion  of  his  in- 
dividual rights,  such  as  the  destruction  of 
shade  trees  in  his  front,  when  they  do  not 
interfere  with  the  use  of  the  highway  for 
any  public  purpose  whatever.  Horr.  &  B. 
Mun.  Ord.  §  7;  Bliss  v.  Ball,  supra;  Wood, 
Nuis.  §  294;  Elliott,  Roads  &  S.  p.  53G.  And 
the  desU'uction  of  shade  and  ornamental  ti'ees 
located  in  a  public  highway  in  front  of  the 
premises  of  tlie  abutting  owner  has  been  held 
to  be  an  irreparable  injury  to  him,  and  fur 
that  reason  has  been  enjoined,  where  their 
removal  was  not  necessary  to  the  enjoyment 
of  the  easement  by  the  public.  Tainter  v. 
Mayor,  19  N.  J.  Eq.  4G;  Cross  v.  Mayor,  IS 
N.  J.  Eq.  30."i;  Bills  v.  Belknap,  3G  Iowa, 
583.  "As  owner  of  the  fee,"  says  Elliott 
(Roads  &  S.  53G),  "subject  only  to  the  public 
easement,  the  abutter  [who  owns  the  fee] 
has  all  the  ordinary  remedies  of  the  owner  of 
a  freehold.  He  may  maintain  trespass 
against  one  who  unlawrully  cuts  and  carries 
away  the  grass,  trees,  or  herbage,  and  even 
against  one  who  stands  upon  the  sidewalk 
in  front  of  his  promises,  and  uses  abusive 
language  towards  him,  refusing  to  depart" 
State  V.  Davis,  SO  N.  C.  351. 

If  th'3  shade  trees  in  front  of  the  plaintiff's 
house  were  not  a  nuisance  at  commnn  law, 
nor  so  declared  by  statute,  no  ordinance  or 
proceeding  of  the  municipal  authorities,  or 
their  agents,  could  justify  their  destruction, 
in  the  face  of  the  objection  of  tb:,'  plaintiff's 
husband.  Miller  v.  Bm-ch,  32  Tex.  2uS;  Yates 
v.  :Mllwaukee,  supra;  1  Dill.  Mun.  Corp.  §§ 
374-379;  Everett  v.  City  of  Council  Blulfs, 
46  Iowa,  66;  Cooley.  Const.  Lim.,  supra; 
Northwestern  Fertilizing  Co.  v.  Village  of 
Hyde  Park,  supra.  The  threa  oak  ti'ees  cut 
down  by  the  street  force,  in  obedience  to  the 
command  of  the  defendant's  street  commit- 
teemen. King  and  Scott,  after  securing  the 
approval  of  Mendcnhall,  of  the  same  com- 
mittee, stood  at  the  outer  edge  of  a  side- 
walk eight  feet  wide,  and  within  the  line  of  the 
cm'bing,  and,  being  directly  in  front  of  tlie 
plaintiff's  dwelling  house,  contributed  to  the 
comfort  of  its  inmates.  The  space  betwcon 
the  trees  and  the  inner  line  of  the  sidewalk 
was  not  uniform  in  width.  It  averaged 
eight,  but  was  at  no  point  less  than  seven^ 
feet  in  width,  and  was  foiuid  by  tho  court 
to  be  sufficiently  wide  to  afford  "room  for 
persons  to  pass  in  the  usual  manner  without 
Inconvenience."  Tho  judge  below  found,  al- 
so, that  "the  leaves  on  said  trees  obstructed 
the  rays  of  Uvq  sun,  and  so  shaded  the  street 
as  to  cause  it  to  be  and  continue  damp  for 
a  portion  of  the  time."  The  finding  excludes 
the  idea  that  the  trees  were  a  nuisance,  in 
obstructing  the  sidewalk;  and  the  mei»3 
fact  that  the  shade  was  so  dense  as  to  cause 
occasional  dampness  under  it  is  not  satis- 
factory evidence  that  they  so  interfered  with 
the  use  of  the  stroet  as  to  constitute  them  a 
nuisance.  Bliss  v.  Ball,  supra.  It  is  a  mat- 
ter of  common  observation  that  all  trees- 
which  subserve  the  purpose  of  sh;iding  the 


516 


MUNICIPAL  LIABILITY. 


ground  prevent  the  earth,  within  the  line 
of  their  shadows,  from  becoming  dry  so  soon 
as  the  surrounding  space.  And  the  commis- 
sioners were  not  authorized,  because  they 
had  created  a  stench  by  filling  a  hole  near 
the  trees  with  green  limbs,  to  declare  them 
a  nuisance,  as  the  cause  of  the  offensive  odor, 
since  the  court  finds  that,  after  removing 
them,  the  municipal  authorities,  by  filling 
the  hole  with  stone,  put  tta  street  in  good 
■condition,  and  that  this  remedy  could  have 
been  effectually  used  without  molesting  the 
trees  at  all.  So  far  from  showing  that  the 
removal  was  demanded  for  the  benefit  or 
convenience  of  the  public,  the  conclusion  of 
fact  submitted  by  the  court  sustains  the  con- 
tention of  the  plaintiff,  that,  being  within 
the  curbing  (but  seven  feet  or  moi'-a  from  the 
fence),  the  trees  neither  obstructed  the  side- 
walk, nor  the  23  feet  of  carriage  way;  that 
the  hole  could  and  would  have  been  filled 
with  stone  or  earth;  and  that,  if  the  damp- 
ness under  the  dense  foliage  of  the  ti-ees 
made  them  a  nuisance,  every  shade  tpoe  that 
subserves  the  purpose  of  planting  it,  if  it 
oasts  a  shadow  upon  a  highway,  would  be 
liable  to  destruction  at  the  arbitrary  bidding 
of  any  agent  of  a  town  who  might  be  in- 
trusted with  the  duty  of  repairing  its  str-aets. 
Lawson,  Rights,  Rem.  &  Pr.  p.  1758,  §  1033. 
The  statutes  which  in  some  states  protect 
such  trees  are  in  affirmance  of  the  principle 
that  the  owner  surrenders  to  tha  public  only 
such  dominion  over  the  laud  as  he  could  not 
•exercise  without  interfering  with  the  ease- 
ment of  the  public  for  use  as  a  highway. 
The  admitted  right  of  the  abutting  owner, 
under  the  common  law,  to  the  herbage,  and 
to  sue,  or  sometimes  cause  to  be  indicted  and 
punished  criminally,  for  a  forcible  trespass 
committed  on  tlie  highway  in  his  front,  is 
an  illustration  of  this  well-established  prin- 
ciple. 

It  is  urged,  however,  on  beh.Tif  of  the 
city  of  Greensborough,  that  it  cannot  be  held 
answerable  for  the  trespass  committed  under 
the  direction  of  the  defendants  King  and 
Scott,  because  it  appears  that  "no  action  was 
taken,  or  order  made,  by  the  board  of  alder- 
men, in  respect  to  the  removal  of  the  trees, 
nor  was  any  report  made  by  tha  street  com- 
mittee to  the  said  board  with  regard  to  their 
action  in  the  premises."  It  was  providc^d  in 
section  12,  c.  1,  of  the  City  Ordinances,  that 
a  number  of  committees,  composed  of  four 
aldermen  each,  should  be  appointed  from  the 
members  of  the  board  to  take  charge  of 
certain  departments  of  the  municipal  gov- 
ernment; and  among  them  was  that  com- 
posed of  defendants  King  and  Scott,  and  Al- 
dermen Glenn  and  Mendenhall,  who,  by  the 
terms  of  the  next  section,  were  intrusted 
with  the  "control  and  supervision  of  all  mat- 
ters relating  to  the  streets,  sidewalks,  and 
pumps  of  the  city,"  ytc.  This  appiintment, 
without  any  fm-ther  recognition  of  their  acts, 
constituted  King  and  Scott  the  agents  of  the 
•city    for    the    sui)ervi.siou   of    the    streets,    and 


all  that  could  be  done  for  the  improvement 
and  reparation  of  them.  2  Dill.  Mun.  Corp. 
979,  (777).  "Towns,  counties,  villages,  and 
cities  must  respond  for  such  torts  of  their 
officers,  agents,  and  servants  as  have  been 
suffered  or  committed  by  corporate  author- 
ity." Cooley,  Torts,  p.  122.  As  agents,  the 
ivlation  of  the  members  of  the  committee  to 
the  town  was  legally  the  same  as  that  of  any 
servant  to  his  master;  and  the  responsibility 
of  the  municipality,  as  superior,  is  likewise 
governed  by  the  rules  applicable  to  such  re- 
lation. Where  a  trespass  is  committed  in  the 
coiirse  of  the  employment  of  an  agent  or  a 
servant,  and  is  intended  and  believed  by  the 
trespasser  to  operate  for  the  benefit  of  his 
superior,  though  it  may  be  willful,  such  su- 
perior is  none  the  less  answerable  for  dam- 
ages. 1  Shear.  &  R.  Neg.  §  151;  Cooley, 
Torts,  p.  53G;  4  Am.  &  Eng.  Enc.  Law,  pp. 
252,  2.53,  note  1;  Johnson  v.  Barber,  5  Gil- 
man,  425;  Limpus  v.  Omnibus  Co.,  1  Hurl. 
«&  C.  526.  "If,  in  exercising  its  power  to 
opon  or  improve  streets,  or  to  make  drains 
or  sewers,  the  agents  or  officers  of  a  munic- 
ipal corporation,  under  its  authority  or  di- 
rection, commit  a  trespass,  or  take  posses- 
sion of  private  property,  without  complj-ing 
with  the  charter  or  statute,  the  corporation 
is  liable  in  damages  therefor.  In  such  cases, 
also,  an  action  will  lie  against  a  city  corpora- 
tion by  the  owner  of  land  through  which  its 
agents  have  unlawfully  made  a  sewer,  or  for 
trees  destroyed  and  injuries  done  by  them." 
2  Dill.  Mun.  Corp.  §  974  (772).  "Where  the 
working  and  repair  of  streets  is  treated  [as 
in  North  Carolina]  as  a  municipal  duty,  and 
the  officer  in  charge  as  a  corporate,  in  dis- 
tinction from  an  independent,  public  officer, 
or  where  the  injury  was  negligently  caused 
by  such  officer  in  the  process  of  executing 
upon  the  streets  an  authorized  corporate  im- 
provement or  work  for  them,  the  doctrine  of 
respondeat  superior  would  apply."  Id.  §§ 
979  (777),  980  (778),  983.  If,  then,  the  city 
was  acting  through  the  members  of  the  com- 
mittee, as  its  agents,  it  was  in  the  exercise 
of  its  ministerial  or  corporate,  as  distinguish- 
ed from  its  judicial,  legislative,  or  discretion- 
ary, duties,  and  was  therefore  answerable,  as 
superior,  for  such  acts,  done  in  the  ccmrse 
of  their  employment,  as  were  manifestly  in- 
tended to  inure  to  the  benefit  of  the  corpo- 
ration. Mottitt  V.  Asheville,  103  N.  C.  237,  9 
S.  E.  G95;  Cooley,  Torts,  pp.  619,  622.  The 
implication  from  the  finding  of  the  court,  iJ' 
that  was  necessary,  is  that  the  committee 
"concuri'od  in  the  conclusion  that  the  trees 
should  be  removed"  in  order  to  improve  the 
street,  and  that  King  and  Scott,  as  aldermen, 
intended  to  benefit  the  corporation  when 
they  directed  the  street  force  to  do  the  work. 
They  then  sustained  the  same  relation  to  the 
municipality  that  a  conductor  or  (jth-^'r  agent 
bears  to  a  quasi  public  corporation,  such  as 
a  railroad  or  street-car  company;  and  it 
is  well  settled  by  numberless  cases  that, 
though  the  agent  or  servant  of  such  corpurjr 


PERFORMANCE  OF  DISCRETIONARY  DUTIES. 


817 


tions  may  willfully  commit  a  trospnss  in  the 
course  of  his  employment,  yet  if  the  act  is 
done  with  tho  belief  that  it  will  benefit  the 
principal  or  master,  and  the  intention  to  ad- 
vance its  interest,  the  principle  of  respon- 
deat superior  applies.  Moore  v.  Railroad 
Co.,  4  Gray,  4G5;  Shea  v.  R:iilroad  Co.,  02  X. 
Y.  ISO;  Seymour  v.  Greenwood,  6  Hurl.  & 
N.  350;  1  Shear.  &  R.  N-og.  §  150;  Cnoloy, 
Torts,  pp.  533-537;  Limpus  v.  Omnibus  Co., 
supra;   I'ol.  Torts,  p.  15. 

But  not  only  is  the  corporation  responsible 
for  acts  done  by  its  agents  in  the  execution 
of  the  duties  assigned  to  them,  but  a  joint 
action  for  tlie  tort  will  lie  against  the  com- 
pany and  the  servant.  Hewett  v.  Swift,  3 
Allen,  420;  Joluison  v.  Barber,  supra;  Wright 
V.  Wilcox,  19  Wend.  343.  The  law  is  found- 
ed upon  the  highest  conceptions  of  natural 
justice.  It  is  impracticable  for  a  mayor  and 
board  of  commissioners  to  move  in  a  body 
along  everj'  street  of  a  city,  and  sit  in  judg- 
ment upon  the  proposed  removal  of  a  tree. 
A  city  must  work  through  agents  constitut- 
ed by  its  governing  authorities;  and,  Avheu 
an  agency  is  inti'usted  to  a  sti'eet  committee, 
there  is  no  principle  of  law,  reason,  or  jus- 
tice that  will  reUeve  the  mimicipality  of  lia- 
bility for  their  torts,  when  engaged  in  the 
business  inti'usted  to  it,  because  the  commit, 
tee  did  not  desist  on  an  objection  to  the  re- 
moval of  the  tree,  stop  the  street  force  from 
work,  and  call  a  meeting  of  the  council  to 
authorize  or  ratify  the  act.  The  town,  when 
engaged  in  the  improvement  of  its  streets, 
or  in  the  performance  of  any  act  intended 
for  the  benefit  of  the  municipality,  is  liable 
both  for  tlie  negligence  and  willful  torts  of 
its  agents,  just  as  when  an  officer  or  servant 
of  a  quasi  public  corporation  commits  little 
overt  acts,  or  negligently  omits  to  discharge 
his  duty,  he  subjects  the  company  that  he 
represents  to  liability  for  consequent  injury. 
Moffltt  V.  Asheville,  supra;  Cooley,  Torts, 
p.  619.  If  a  director  of  a  railroad  company 
were  appointed  to  act  as  conductor,  the  com- 
pany could  not  escape  liability  for  removing 
a  passenger  on  the  groimd  that,  by  disorder- 
ly conduct  he  had  been  guilty  of  nuisance, 
when  in  fact  his  acts  did  not  justify  the  con- 
ductor in  ejecting  him.  The  committee  were 
not  the  less  agents  of  the  town  coimcil  be- 
cause they  were  selected  from  the  body  it- 
self. It  is  a  well-known  fact  that  tlie  gov- 
erning authorities  of  our  towns,  usually,  if 
not  universally,  intrust  the  management  of 
improvements,  not  involving  the  ccudemna- 
tion  of  private  property,  to  committees  se- 
lected from  their  own  bodies.  To  absolve 
the  towns  from  liability  for  a  trespass  com- 
mitted by  such  agents,  or  under  their  direc- 
tion, for  the  benefit  of  the  corporation, 
when,  in  many  cases,  such  committeemen 
are  irresponsible  primarily,  would  be  to 
countenance  oppression,  and,  in  some  in- 
stances, what  would  be  equivalent  to  confis- 
cation. An  ordinance  provided  that  the 
street    committee    "shall    have    control    and 


supervision  of  all  matters  relating  to  streets, 
sidewalks,  and  pumps,  and  shall  determine 
the  amount  of  lal)or  and  material  to  be  used, 
*  *  ♦  and  shall  report  to  the  board  from 
time  to  time,  and  perform  the  diities  imposed 
upon  them  by  the  board  of  aldermen." 
Would  the  ordinaiy  regulation  that  a  con- 
ductor should  report  to  the  president  of  the 
company,  or  superintendent,  the  fact  that  he 
had  ejected  a  passenger,  excuse  the  company 
from  responsibility  for  injury  caused  by  a 
wrongful  expulsion?  When  acting  for  its 
own  benefit,  a  municipality  stands  upon  pre- 
cisely the  same  footing,  as  to  liability  for  the 
acts  of  its  ag(Mits,  as  does  a  quasi  public  cor- 
poration. See  Mortitt  v.  Asheville,  supra, 
and  authorities  cited.  Suppose  such  a  cor- 
poration should,  by  means  of  a  by-law,  de- 
clare the  conductor,  engineer,  baggage  mas- 
ter, and  flagman  a  committee  to  have  control 
of  the  question  of  ejecting  drunken  or  dis- 
ordei-ly  passengers,  or  such  as  failed  to  se- 
ciu-e  tickets  or  pay  fare.  Would  the  corpo- 
ration be  allowed  to  evade  liability  for  the 
wrongful,  willful,  and  violent  expulsion  of  a 
passenger  by  tlie  conductor  and  baggageman 
after  consulting  the  flagman,  because  tlie  en- 
gineer did  not  approve  the  act  tUl  it  was 
communicated?  Cooley,  Torts,  p.  539.  To 
applj'  the  same  principle  to  such  agencies  as 
govern  in  questions  of  tlie  right  of  the  di- 
rectors of  private  corporations  to  bind  their 
companies  would  be  the  entering  wedge  to 
the  destruction  of  all  corporate  liability  for 
the  torts  of  agents  and  servants.  Means 
would  be  found,  by  ingenious  regulations,  to 
leave  the  public  at  the  mercy  or  caprice  of 
irresponsible  and  reckless  agents  and  serv- 
ants, were  the  possibility  of  putting  the  cor- 
poration behind  such  bulwarks  once  sug- 
gested. The  right  to  trial  by  jury  is  none 
the  less  a  constitutional  right  because  jm-ies 
are  sometimes  misled  by  prejudice.  The 
corrective  for  sucli  an  evil,  if  it  exists,  is  the 
enactment  of  statutes  requiring  greater  care 
in  their  selection,  not  judicial  legislation  re- 
sti-icting  the  operation  of  the  original  law. 
Says  Judge  Cooley  in  his  work  on  Torts 
(page  122):  "Towns,  counties,  villages,  and 
cities  must  respond  for  such  torts  of  their 
officers,  agents,  and  servants  as  have  been 
committed  or  suffered  by  corporate  author- 
ities." "It  is  not  merely  for  the  wrongful 
act  that  the  agent  or  servant  is  directed 
to  do,  but  the  wrongfiU  act  he  is  suffered 
to  do,  that  the  city  Is  responsible."  Id. 
p.  534.  It  was  the  duty  of  the  city  to 
see  that  its  agents  were  attentive  and  pru- 
dent, and  so  conducted  its  business  as 
not  needlessly  to  injm'e  others.  Com.  v. 
Nichols,  10  Mete.  (Mass.)  259.  The  law  pre- 
sumes that  the  city  looks  after  its  street 
force;  and  the  fact  that  it  was  engagcMl,  two 
or  three  days  after  the  order  was  given  by 
Scott  and  King,  in  removing  the  trees,  is 
evidence  that  the  mayor  and  commissioners 
knowingly  suffered  the  removal  to  be  made. 
They  knew,  or  ought  to  have  known,  what 


318 


MUNICIPAL    LIABILITY. 


these  paid  laborers  were  doing.  I  tliinli, 
therefore,  that  there  was  error  in  the  ruling 
of  the  court  below  that  the  action  could  not 
be  maintained  either  against  the  city,  or  the 
two  aldermen  in  their  individual  capacity. 
The  two  aldermen  were  guilty  of  a  wiUful 
trespass,  for  which  the  corporation  became 
liable,  because  it  was  committed  in  the  at- 
tempt to  discharge  their  duty  to  the  cori)ora- 
tion,  as  agents  named  in  the  ordinance,  and 
with  the  intent  to  improve  its  streets.  The 
act  being  willful,  the  agents  were  not  re- 
lieved of  responsibility  because  the  princi- 
pals were  made  answerable.  The  committee 
were  not  a  corporation,  but  were  the  author- 
ized agents  of  the  town;  and  it  was  not  es- 
sential that  they  should  meet,  like  stockhold- 


ers, at  an  appointed  time  or  place.  The 
question  is  not  whether  they  coiild  bind  a 
municipality  by  a  contract,  but  whether,  as 
its  servants  acting  within  the  line  of  duty 
prescribed  for  them,  they  covdd  make  the 
citj'  a  joint  tort  feasor  with  them.  It  was 
sufficient,  I  think,  that  a  majority  agreed 
upon  a  certain  course  of  conduct,  and  their 
pmT)ose  was  carried  out  by  the  laborers  at 
the  bidding  of  two  of  the  number,  and  they 
were  not  acting  in  strict  conformity,  as  stock- 
holders, to  the  terms  of  a  charter,  but  were 
agents  carrying  out  a  common  pm'pose  to 
cause  a  trespass  to  be  committed. 

MacRAE,   J.     I  concur  in  the  above  dis- 
senting opinion. 


FOR  FAILURE  TO  ABATE  NUISANCE. 


819 


LOVE  V.  CITY  OF  ATLANTA. 

(22  S.  E.  29,  95  Ga.  129.) 

Supreme  Court  of  Georgia.     Dec.   4,  1S94. 

Error  from  city  court  of  Atlanta;  Howard 
Tan  Epps,  Judge. 

Action  by  W.  A.  Love  against  the  city  of 
Atlanta.  Defendant  bad  judgment,  and 
plaintiff  brings  eiTor.    Affirmed. 

Dorsey,  Brewster  &  Howell,  for  plaintiff  in 
«rror.     J.  A.  Anderson  and  Fulton  Colville,   | 
for  defendant  in  error. 

ATKINSON,  J.  Love  brought  against  the 
•city  of  Atlanta  an  action  for  damages,  al- 
leging, in  substance,  that  while  he  was  pass- 
ing along  the  streets  of  the  city,  in  the  ex- 
ercise of  proper  care,  without  fault  upon  his 
part,  by,  through,  and  because  of  the  negli- 
gence of  a  servant  of  the  defendant,  an  ani- 
mal attached  to  one  of  the  garbage  carts  of 
the  city  was  permitted  to  run  away,  and 
while  so  running  collided  with  the  buggy  of 
the  plaintiff,  causing  serious  injury.  It  was 
also  alleged  that  the  driver  of  the  cart  was 
a  small  negro  boy,  wliolly  incompetent  to 
the  discharge  of  the  duty,  and  that  the  mule 
employed  was  vicious,  dangerous,  and  liable 
to  run  away.  The  evidence  proved  the  plain- 
tiff's cause  of  action  as  laid  in  the  declara- 
tion, and  in  reply  it  was  shown  that  the  mule 
and  cart  causing  the  damage  were  in  use 
by  the  city  under  the  direction  of  the  health 
board  of  the  city,  and  that  the  servant  of 
the  city  charged  with  driving  said  cart  was 
then  employed  in  cleaning  the  streets,  and 
removing  therefrom  such  putrid  and  offen- 
sive substances  as  usually  accumulate  in 
the  streets  of  densely  populated  cities,  and 
which  were  necessary  to  be  removed,  be- 
<'ause,  remaining,  they  endangered  the  pub- 
lic health.  At  the  conclusion  of  the  evi- 
dence the  trial  judge  directed  a  verdict  for 
the  defendant,  instructing  the  jury  that,  in- 
asmuch as  the  uncontroverted  testimony 
ahowed  that  the  injury  complained  of  was 
inflicted  by  servants  of  the  city  employed 
by  that  department  of  the  city  government 
whose  duty  it  was  to  look  after  and  pre- 
serve the  public  health,  and  inasmuch  as  it 
appeared  that  this  injury  was  inflicted  by 
the  defendant's  servants  while  engaged  in 
the  performance  of  work  essential  to  the  dis- 
<'harge  of  that  particular  duty,  the  city  was 
not  liable,  and  they  should  return  a  verdict 
for  the  defendant.  Exception  is  taken  to 
this  instruction,  and  we  are  now  to  consider 
I  "whether  the  court  erred.  Distinctions  do 
not  appear  to  have  been  at  all  times  accu- 
rately drawn  between  the  classes  of  cases  in 
I  which  a  municipal  corporation  would  be  lia- 
ble and  those  in  which  it  would  not  be  liable 
[  for  the  misfeasance  or  nonfeasanceof  a  public 
servant  employed  under  mimicipal  authority 
in  the  discharge  of  duties  relating  to  corpo- 
rate affaii's.     One  general  proposition,  how- 


ever, seems  to  have  received  general  recog- 
nition at  the  hands  of  courts  of  last  re- , 
sort  wherever  that  class  of  cases  has  beenl 
considered,  and  that  class  of  cases  is  that,| 
wliei-e  an  injury  sustained  is  inflicted  be-' 
cause  of  the  misfejisance  of  an  ajjeut  ofla  I 
corporation  while  engaged  in  a  duty  perti-  j 
neuF'to  the  exercise  of  what  are  tornied 
"governmental  fimctions  of  a  corporation," 
the  city  is  upt  liable.  Where  injuries  under 
similar  circumstances  are  inflicted  by  the 
agent  of  a  corporation  acting  for  it  in  the 
discharge  of  a  duty  on  behalf  of  a  municipal 
coi-poration  where  it  is  engaged  in  the  ex- 
ercise of  some  private  franchise,  or  some 
franchise  conferred  upon  it  by  law  which  it 
may  exercise  for  the  private  profit  or  con- 
venience of  the  corporation  or  for  the  con- 
venience of  its  citizens  alone,  in  which  the 
general  public  has  no  interest,  for  such  in- 
juries a  right  of  recovery  lies  against  the 
city.  Some  difficulty  has  arisen  in  the  ap- 
plication of  these  general  principles  to  the 
facts  of  particular  cases  which  from  time  to 
time  have  arisen.  Some  difficulty  has  arisen 
in  the  proper  classification  of  cases  in  order 
to  assign  each  to  its  appropriate  position 
with  reference  to  the  liability  or  nonliability 
of  a  corporation,  and  the  courts  have  not 
been  altogether  happy  nor  entirely  consist- 
ent at  all  times  in  this  regard.  As  an  illus- 
tration of  this,  it  is  held  that  cities  are  liable 
for  damages  resulting  from  the  nonrepair  or 
from  the  dangerous  condition  of  public 
streets,  and  this  in  the  absence  of  strict 
statutory  liability  imposed  by  law.  It  has 
been  held  that  they  are  not  liable  for  dam- 
ages occasionetl  by  their  fire  departments  for 
injuries  to  person  or  property  in  going  to  or 
from  fires.  The  former  case  is  one  that 
might  properly  have  been  originally  classi- 
fied among  the  eases  of  nonliability.  The 
duty  of  keeping  its  streets  in  repair  is  a  pub- 
lic duty,  in  which  the  general  public  is  in- 
terested. The  state  commits  to  it  the  dis- 
charge of  those  governmental  duties  incident 
to  the  sovereign  power,  by  which  it  is  re- 
quired to  maiutjijji  for  the  use  of  the  gen- 
eral public  and  for  the  public  convenience  a 
system  of  roads  throughout  the  state,  and 
the  assignment  of  this  particular  duty  to 
municipal  corporations  within  their  limits 
may  fairly  be  said  to  be  a  delegation  of 
what  appears  to  us  to  be  one  of  the  functions 
of  the  government.  The  latter  case,  refer- 
ring to  the  fire  department,  is  a  case  of  non- 
liability, and,  if  not  the  exercise  of  a  pri- 
vate power  for  the  benefit  of  the  corporation 
itself  and  the  inliabitauts  thereof,  in  which 
the  general  public  in  no  way  participates,  it 
reaches  the  verge  upon  that  line.  We  cite  these 
as  simple  illustrations  of  our  statement  that 
the  courts  have  not  at  all  times  been  con- 
sistent, but  with  no  purpose  either  to  dis- 
turb the  precedents  established  by  repeated 
rulings  of  respectable  courts  of  last  resort 
in  nearly  all  the  states,  or  to  intimate  that 
there  is  such  a  doubt  as  to  their  soundness  as 


320 


MUNICIPAL  LIABILITY. 


would  in  any  sense  justify  the  adoption  of 
otiier   rules.    With   respect  to   matters  con- 
cerning the  public  health,  however,  there  is 
no  serious  conflict  of  reason,  opinion,  or  au- 
thority upon  the  correctness  of  the  proposi- 
tion   that    the    preservation     of    the    public 
health  is  one  of  the  duties  that  devolve  up- 
on  the   state   as   a  sovereign  power.     It   is 
'  such  a  duty  as,  upon  proper  occasion,  justi- 
fies the  exercise  of  the  right  of  eminent  do- 
main,    and    the     demolition     of    structures 
which  endanger  or  imperil  the  public  health. 
In  the  discharge  of  such  duties  as  pertain  to 
the  health  department  of  the  state,  the  state 
is  acting  strictly  in  the  discharge  of  one  of 
the  functions  of  government.     If  the  state 
I  delegate  to  a  municipal  corporation,   either 
I  by  general  law  or  by  particular  statute,  this 
power,  and  impose  upon  it,   within  its  lim- 
[  Its,  the  duty  of  taking  such  steps  and  such 
'  measures  as  may  be  necessary  to  the  pres- 
ervation of  the  public  health,  the  municipal 
corporation    likewise,    in    the    discharge    of 
such  duty,  is  in  the  exercise  of  a  purely  gov- 
ernmental   function,    affecting    the    welfare 
I  not  only  of  the  citizens  resident  within  its 
'  corporation,  but  of  the  citizens  of  the  com- 
>  monwealth  generally,  all  of  whom  have  an 
I  interest  in  the  prevention   of  infectious  or 
contagious  diseases  at  any  point  within  the 
I  state,  and  in  the  exercise  of  such  powers  is 
[  entitled  to  the  same  immunity  against  suit 
as   the   state     itself     enjoys.     Such    a    duty 
would  stand  upon  the  same  footing  as  its  du- 
ty to  preseiwe  the  public  peace,  and  its  lia- 
bility or  nonliability  would  depend  upon  the 
same  principle  which  relieves  the  city  from 
liability  for  the  misfeasance  of  a  police  offi- 
cer in  the  di-scharge  of  his  duty.     It  will  be 
observed,  however,  that,  in  order  to  exempt 
a  city  from   liability,  it  is  not  sufficient  to 
show  that  the  particular  work  from  the  neg- 
ligent performance  of  which  by  the  servants 
of  the  city  a  citizen  was  injured  was  being 
performed  under  the  direction  of  the  health 
authorities,  but  it  must  be  shown  that  the 
particular  work  so  being  done  was  connect- 
ed with,  or  had  reference  to,  the  preserva- 
tion of  the  public  health.     If  the  health  de- 


partment were  engaged  in  clearing  away  or 
removing  obstructions  from  the  street  which 
in  no  way  endangered  the  public  health,  the 
responsibility  of  the  city  then  would  rest  up- 
on the  rule  of  liability  for  the  work  connect- 
ed with  repairing  and  keeping  in  order  the 
public  highways.  It  can  make  no  difference 
in  principle  as  to  the  character  of  the  agents 
employed  in  the  discharge  of  this  duty  with 
respect  to  the  public  health.  The  prinxnple 
of  nonliability  rests  uppn  the  broad  ground 
that  in  the  discharge  of  its  piirely  govern- 
mental functions,  a  corjiorate  body  to  which 
has  been  delegated  a  portion  of  the  sover- 
eij^n  power  is  not  liable  for  torts  committed 
in  the  discharge  of  su^  duties  and  in  the 
execution  oF  such  powers,  "it  can  be  no 
more  liable  because  of  the  fault  to  select  / 
competent  drivers  of  garbage  carts  than  a  j 
city  could  be  held  liable  for  failing  to  elect 
a  wise,  conservative,  and  discreet  mayor.         ' 

Let  us  inquire,  then,  whether  the  particu- 
lar service  being  performed  by  this  particu- 
lar servant  of  the  corporation  had  special 
reference  to  the  preservation  of  the  public 
health.  The  accumulation  of  garbage,  of 
substances  offensive  to  the  sense  of  smell, 
of  substances  which,  if  permitted  to  remain, 
would  poison  the  atmosphere,  and  breed  dis- 
eases infectious  and  contagious  among  the 
inhabitants  of  the  city,  may  well  be  said  to 
endanger  the  public  health.  The  preserva- 
tion of  the  public  health  involves  the  re- 
moval of  those  causes  which  are  calculated 
to  produce  disease.  According  to  the  undis- 
puted testimony  in  the  case,  the  driver  of 
this  garbage  cart  and  the  alleged  refractory 
mule  were  engaged  actually  in  the  removal 
from  the  streets  of  substances  similar  to 
those  described  above.  However  incongru- 
ous it  may  appear  to  be  to  say  that  this  di- 
minutive darkey  and  this  refractory  mule 
were  engaged  in  the  performance  of  some  of 
the  functions  of  government,  it  is  neverthe- 
less true,  and  illustrates  how  even  the  hum- 
blest of  its  citizens,  under  the  operations  of 
its  laws,  may  become,  in  Georgia,  an  im- 
portant public  functionary.  Judgment  af- 
firmed. 


FOR  NEGLIGENT  SUPPLY  OF  WATER. 


321 


SPRINGFIELD  FIRE  &  MARINE  INS.  CO. 
V.  VILLAGE  OF  IvEESE^^LLE. 

.      (42  N.  E.  405,  148  N.  Y.  46.) 

Court  of  Appeals  of  New  York.     Dec.  19,  1805. 

Appeal  from  supreme  court,  general  term, 
Third  department. 

Action  b}'  the  Springfield  Fire  &  Marine 
Insurance  Company,  of  Springfield,  Mass., 
against  the  village  of  Keeseville.  A  judgment 
sustaining  a  demurrer  to  the  complaint  was 
reversed  by  the  general  term  (29  N.  Y.  Supp. 
lloOj,  and  defendant  appeals.     Reversed. 

Chester  B.  McLaughlin,  for  appellant  A. 
W.  Boynton,  for  respondent. 

GRAY,  J.  The  learned  justice  who  spoke  for 
the  general  term,  in  a  very  elaborate  and  inter- 
esting opinion,  proceeded,  very  correctly,  as  I 
think,  upon  the  assumption  that  the  neghgence 
charged  against  the  defendant  in  the  complaint 
related  entirely  to  its  waterworks  system.  In 
the  view  which  we  take  of  the  matter,  it  is  of 
comparatively  little  consequence  whether  the 
plaintiff  based  its  right  of  action  upon  negli- 
gence with  respect  to  the  fire  department  as 
such,  or  to  the  water  department  as  such. 
But  the  fair  reading  of  the  complaint  un- 
doubtedly warrants  the  assumption  of  the 
learned  Justii,'e  at  general  term.  If  I  correct- 
ly apprehend  the  reasoning  which  led  the  gen- 
eral term  to  the  conclusion  that  there  was  a 
municipal  liability  upon  an  admission  of  the 
facts  set  forth  in  the  complaint,  it  rests,  in  the 
main,  upon  two  theories.  In  the  first  pliipe, 
it  is  held  that,  by  the  voluntary  assumption 
on  the  part  of  the  defendant  of  the  power  con- 
ferred by  statute  to  construct  and  maintain 
Avaterworks,  it  became  responsible  for  the 
proper  exercise  of  such  power,  and  that  such 
responsibility  is  necessarily  demanded  in  the 
interest  of  an  efficient  public  service,  and  the 
inhabitants,  who  have  contributed  to  the 
maintenance  of  such  a  public  work,  have  a 
right  to  hold  the  defendant  to  the  exercise  of 
reasonable  care  and  diligence  and  to  a  liabil- 
ity for  a  failure  to  do  so.  In  the  next  place, 
it  is  held,  while  not  ieeming  that  the  defend- 
ant had  engaged  in  a  private  coi-porate  busi- 
ness, conducted  for  its  own  benefit,  and  not 
for  the  general  public,  nevertheless  that  the 
defendant  having  agreed  to  erect  and  take 
charge  of  the  public  work  and  enterprise  for 
the  public  within  its  boundaries,  if  there  is  a 
failure  to  exercise  reasonable  care  and  diU- 
geiice  in  maintaining  it,  there  has  been  a 
breach  of  an  implied  contract,  for  which, 
if  injury  x'esults,  an  action  will  lie.  Holding 
these  views,  the  learned  general  term  felt 
compelled,  because  of  the  admission  by  the 
defendant,  through  its  demurrer,  of  the  alle- 
gations of  wrongful  and  neglectful  conduct 
in  relation  to  the  maintenance  of  its  water- 
works, to  hold  that  the  plaintiff  made  out  a 
good  cause  of  action. 

The  preposition  that  such  a  liability  rests 
upon  a  jnimicipal  corporation,  as  is  asseiled 

ABB.CORP.— 21 


here,  is  somewhat  startling,  and  I  think  the 
learned  general  term  justices  have  misappre- 
hended the  nature  of  the  respc.nsibility  which 
devolved  upon  the  defendant  in  connection 
with  its  maintenance  of  a  waterworks  sjstem, 
as  well  as  the  character  of  the  power  which 
it  was  authorized  to  exercise  in  relation  there- 
to. I  might  remark,  in  the  same  spirit  of 
criticism  which  was  assuuied  by  the  learned 
justice  at  general  term,  that  while  the  efficien- 
cy of  the  public  service  would  be  promoted 
by  holding  municipal  corporations  to  the  exer- 
cise of  reasonable  care  and  diligence  in  the 
performance  of  municipal  duties,  and  to  a 
lii>bility  for  injury  resulting  from  a  failure 
in  such  exercise,  the  application  of  that  doc- 
trine to  such  a  case  as  this  might,  and  proba- 
bly would,  be  highly  disastrous  to  municipal 
governments.  A  little  refiection  will  show 
that  a  multitude  of  actions  would  be  encour- 
aged, by  fire  insurance  companies,  as  by  indi- 
viduals, and  that  cases  have  arisen,  and  may 
still  arise,  where  an  extensive  conflagration 
might  bankrupt  the  municipality,  if  it  could 
be  rendered  liable  for  the  damages  or  losses 
sustained.  The  distinction  between  the  pub- 
lic and  private  powers  conferred  upon  munici- 
pal corporations,  although  the  line  of  demar-  ;' 
kation  at  times  may  be  difficult  to  ascertain,  j 
is  generally  clear  enough.  It  has  been  fre- 
quently the  subject  of  judicial  discussion,  and, 
among  the  numerous  cases,  it  is  sufficient  to 
ref'^-  to  Bailey  v.  Mayor,  etc.,  3  Hill,  531;  Lloyd 
V.  Mayor,  etc.,  5  N.  Y.  309;  and  Maxmilian 
V.  Mayor,  etc.,  G2  N.  Y.  100.  The  opinion  in 
Darlington  v.  Mayor,  etc.,  31  N.  Y.  104,  is 
also  instructive  upon  the  subject.  "When  we 
find  that  the  power  conferred  has  relation  to 
public  purposes  and  is  for  the  public  good,  it 
is  to  be  classified  as  governmental  in  its  na- 
ture, and  it  appertains  to  the  corporation  in 
its  political  character.  But  when  it  relates  to 
the  accomplishment  of  private  corporate  pur- 
poses, in  which  the  public  is  only  indirectly 
concerned,  it  is  private  in  its  nature,  and  the 
municipal  corporation,  in  respect  to  its  exer- 
cise, is  regarded  as  a  legal  individual.  In  the 
former  case,  the  corporation  is  exempt  from 
all  liability,  whether  for  nonuser  or  misuser; 
while  in  the  latter  case,  it  may  be  held  to  that 
degree  of  responsibility  which  would  attach  I 
to  an  ordinary  private  corporation.  Then  the 
investiture  of  municipal  corporations  by  the  / 
legislature  with  administrative  powers  may 
be  of  two  kinds.  It  may  confer  powers,  and  » 
enjoin  their  performance  upon  the  corporation  [ 
as  a  duty;  or  it  may  create  new  powers,  to 
be  exercised  as  gorernmenUil  adjuncts,  and  / 
make  their  assumption  optional  with  the  cor- 
poration. Where  a  duty  specifically  enjoined  J 
upon  the  corporation,  as  such,  has  been  whol- 
ly neglected  by  its  agents,  and  an  injury  to 
an  individual  arises  in  consequence  of  the  neg- 
lect, the  coi-poration  will  be  held  responsible. 
Mayor,  etc.,  v.  Furze,  3  Hill,  012,  019.  So, 
in  McCarthy  v.  City  of  Syracuse,  40  N.  Y.  194, 
it  was  held  that,  where  a  duty  of  a  ministerial 
character  is  imposed  by  law  upon  the  corpora- 


322 


MUNICIPAL  LIABILITY. 


tion,  a  negligent  omission  to  perform  that  du- 
ty creates  a  liability  for  damages  sustained. 
Such  responsibility,  however,  would  not  at- 
tach to  the  corporation  where  it  has  volun- 
tarily assumed  powers  authorized  by  the  leg- 
islatiu"e  under  some  general  provision  respect- 
ing municipalities  throughout  the  state,  and 
permissive  in  their  nature;  and  at  this  point 
I  touch  one  of  the  theories  upon  which  the 
general  term  decision  seems  to  rest.  In  such 
a  case— and  I  speak,  of  course,  of  legislative 
acts  which  are  general  in  their  nature  and 
scope — the  assumption  by  the  municipal  cor- 
poration is  of  a  further  function  of  self,  or 
local,  government  and  such  a  power  is  discre- 
tionaiy  in  its  exercise,  and  carries  with  it  no 
consequent  liability  for  nonuser  or  misuser. 
In  the  legislature  reside  the  power  and  force 
of  government,  confided  to  it  by  the  people 
under  constitutional  restrictions.  In  the  cre- 
ation of  municipal  corporations  subordinate 
commonwealths  are  made,  upon  which  certain 
limited  and  prescribed  political  powers  are 
conferred  and  which  enjoy  the  benefits  of  lo- 
<?al  self-government.  People  v.  Common 
I  Council  of  Detroit,  28  Mich.  228.  When,  in 
addition  to  those  general  powers  which  are 
prescribed  upon  the  creation  of  a  municipal 
corporation,  general  statutes  permit  the  as- 
sumption of  further  powers  as  a  means  of 
benefiting  the  portion  of  the  public  in  the  par- 
ticular locality,  they  invest  the  corporation 
availing  itself  of  the  permission  with  just  so 
much  more  governmental  power.  Just  as  the 
general  powers  deposited  with  the  various 
municipalities  are  exercised  by  them  in  a 
quasi  sovereign  capacity,  so  would  any  added 
powers  designed  for  the  general  public  good, 
'  though  optional  with  the  corporation  as  to 
their  assumption,  and  in  their  exercise  and 
performance  local,  be  exercised.  They  are 
not  special,  as  being  designed  for  and  granted 
to  a  particular  municipality;  for  they  are  ap- 
plicable to  every  part  of  the  body  politic 
where  municipal  government  exists.  Such 
powers,  in  legal  contemplation,  appertain  to 
the  municipal  corporation  as  such,  and  may 
^  be  adopted  as  a  part  of  the  governmental  sys- 
tem. 

The  acts  under  which  the  defendant  was 
authorized  to  construct  and  maintain  a  sys- 
tem of  waterworks  constitute  a  general  law, 
appUcable  to  all  incoi-porated  villages  in  the 
state.  They  impose  no  duty,  and,  when  avail- 
ed of,  the  task  undertaken  is  discretionaiy 
in  its  character.  The  grant  of  powers  must 
be  regarded  as  exclusively  for  public  pur- 
poses, and  as  belonging  to  the  municipal  cor- 
poration, when  assvuued,  in  its  public,  politi- 
cal, or  municipal  character.  In  Bailey  v. 
Mayor,  etc.,  3  Hill,  531,  to  wliich  reference  is 
made  in  the  opinion  below,  the  city  of  New 
York,  at  a  very  early  day,  was  authorized 
by  special  legislation  to  engage  in  the  work 
of  supplying  its  citizens  with  water  and  to 
acquire  lands  and  water  rights  for  the  pur- 
pose, and,  as  is  clear  from  the  reading  of 
the  opinion  of  Chief  Justice  Nelson,  the  city 


was  regarded  in  the  light  of  any  other  private 
company,  because  of  the  special  franchises 
conferred.  Assuming  that  we  could  regard 
the  doctrine  of  that  case  as  authoritative  at 
the  present  day,  as  to  which  there  has  been 
and  might  be  some  (luestiou  (see  Darlington 
V.  Mayor,  etc.,  supra),  the  decision  is  inap- 
plicable to  the  present  case.  In  Himt  v. 
Mayor,  etc.,  109  N.  Y.  134,  16  N.  E.  320.  the 
case  turned  upon  the  performance  by  the  city 
of  the  dyty  cast  upon  it  to  keep  its  streets 
in  a  safe  condition  for  travel.  In  Cain  v. 
City  of  Syracuse,  95  N.  Y.  S3,  the  discussion 
was  as  to  the  nature  of  the  duty  imposed 
iipon  the  defendant  by  the  power  in  its  char- 
ter to  pass  ordinances,  among  other  things, 
for  the  razing  of  buildings  which  had  become 
dangerous  by  reason  of  fire.  The  failure  of 
the  common  council  to  pass  a  resolution  in 
respect  to  the  building  in  question  was  not 
deemed  to  be  a  neglect  of  a  duty.  It  was  a 
discretionary  matter.  Nothing  was  decided 
in  that  case  which  controls  the  decision  of 
the  present  case,  or  which  affects  the  discus- 
sion materially.  Nor  can  we  assent  to  the 
view  that  the  defendant  sustains  such  an 
implied  contractual  relation  to  the  public 
within  its  boundaries,  with  i-espect  to  the  con- 
struction of  this  public  work,  as  to  be  re- 
sponsible for  a  failure  to  exercise  reasonable 
care  and  diligence  in  respect  to  its  mainte- 
nance. If  the  views  which  I  have  somewhat 
briefly  expressed  are  correct,  the  defendant 
exercised  a  fimction  which,  like  all  govern- 
mental functions,  was  purely  discretionary. 
What  it  undertook  to  do,  when  availing  itself 
of  the  privilege  of  the  general  act,  was  to 
provide  for  the  local  convenience  of  its  in- 
habitants. 

The  industry  of  the  defendant's  counsel  has 
collated  a  great  number  of  decisions,  by  the 
courts  of  other  states,  which  indicate  a  very 
general  view  that  the  powers  conferred  by 
the  law  of  the  state  upon  its  municipal  cor- 
porations to  establish  waterworks  and  tire 
departments  are,  in  their  nature,  legislative 
and  governmental.  From  them  I  may  select 
one  or  two.  In  Edgerly  v.  Concord,  62  N.  H. 
8,  it  wa.s  said  by  the  court:  "As  a  part  of 
the  governmental  machinery  of  the  state, 
municipal  corporations  legislate  and  provide 
for  the  customary  local  convenience  of  the 
people,  and  in  exercising  these  discretionaiT 
functions  the  corporations  are  not  called  upon 
to  respond  in  damages  to  individuals  either 
for  omissions  to  act  or  in  the  mode  of  exer- 
cising the  powers  conferred  on  them  for  pub- 
lic purposes  and  to  be  exercised  at  discretion 
for  the  public  good.  For  injuries  arising 
from  the  coi-poratiou's  failure  to  exercise  its 
public,  legislative,  and  police  powers,  and  for 
the  manner  of  executing  those  powers,  there 
is  no  remedy  against  the  municipality,  nor 
can  an  action  be  maintained  for  damages  re- 
sulting from  the  failm'e  of  its  officers  to  dis- 
charge properly  and  efficiently  their  official 
duties."  In  Ta  inter  v.  Citj;  of  Worcester,  123 
Mass.  311,  it  was  said  hy  the  court:    "The 


rOR  NEGLIGENT  SUPPLY  OF  WATER. 


323 


protection  of  all  buildings  in  a  city  or  town 
from  destruction  or  injury  by  fire  is  for  the 
benefit  of  all  the  inhabitants  and  for  their 
relief  from  a  common  danger;  and  cities  and 
towns  are  therefore  authorized  by  general 
laws  to  provide  and  maintain  fire  engines, 
etc.,  to  supply  water  for  the  extinguishment 
of  fires.  The  city  did  not,  by  accepting  the 
statute,  and  building  its  waterworks  under 
it,  enter  into  any  contract  with,  or  assume 
any  hability  to,  the  owners  of  property  to 
furnish  means  or  water  for  the  extinguish- 
ment of  fires  upon  which  an  action  can  be 
maintained."  In  Maxmilian  v.  Maj^r,  etc., 
62  N.  Y.  160,  the  reasoning  of  the  opinion 
permits  a  clear  inference  that  this  defendant 
did  not,  by  accepting  the  provisions  of  the 
statutes,  assume  a  duty  of  the  kind  which 
arises  from  the  grant  of  a  special  power. 
Judge  Folger  uses  this  language,  in  his  dis- 
cussion of  the  two  kinds  of  duties  which  are 
imposed  upon  a  municipal  corporation:  "The 
former"  (referring  to  the  case  of  a  grant  of 
a  special  power)  "is  not  held  by  the  mu- 
nicipality as  one  of  the  political  divisions  of 
the  state."  Again  he  says:  "Where  the  pow- 
er is  intrusted  to  it  as  one  of  the  political 
divisions  of  the  state,  and  is  conferred,  not 
for  the  immediate  benefit  of  the  municipality, 
but  as  a  means  to  the  exercise  of  the  sover- 
eign power  for  the  benefit  of  all  citizens,  the 
corporation  is  not  liable  for  nonuser  nor  for 
misuser  by  the  pubhc  agents;"  citing  East- 
man V.  Meredith,  36  N.  H.  284.  This  defend- 
ant, precisely,  is  intrusted  with  the  power  to 
maintain  its  waterworks,  because  it  is  one 
of  the  political  subdivisions  of  the  state  to 
which  the  general  act  has  reference  in  its 
general  grant  of  power  or  privilege. 
/  Nor  does  the  fact  that  water  rents  are  paid 
/  by  the  inhabitants  of  the  defendant  affect  the 
I  question.  This  fact  is  made  use  of  to  show 
.  the  private  corporate  character  of  the  water- 
/  works  system,  and  the  suggestion  is  that 
profit  or  benefits  accrue  to  the  defendant 
/  whereby  the  corporate  undertaking  is  afltcx:t- 
ed  with  a  private  interest.  But  that  is  an  in- 
/  correct  notion.  The  imposition  of  water  rents 
I  Is  but  a  mode  of  taxation,  and  a  part  of  the 


general   scheme    for   the   purpose   of  raising 
revenue  with  which  to  carry  on  the  work  of 
government.    If  profits  accme  over  the   ex- 
pense of  the  maintenance  of  the  system,  they  » 
go  to  benefit  the  public  by  lessening  the  gon-  | 
eral  burden  of  taxation.    The  fallacy,   as  it  I 
scorns  to  me,  which  affects  the  argument  that  f 
the  municipal  coriroration  can  be  made  liable 
for  the  nonuser  or  misuser  of  its  power,  con- 
sists in  that  it  fails  to  appreciate  the  true  • 
nature  of  the  function  which  the  corporation 
performs.    It  adds  to  its  political  machinery  I 
for  the  purpose  of  benefiting  and  of  protect-  I 
ing  its  inhabitants.    There  is  nothing  connect-  / 
ed  with  the  work  which  is  not  of  a  govern-  I 
mental  and  public  nature.    It  is  in  no  sense  ( 
a  private  business,  and  the  authority  to  con- 
struct the  works  w^as  given  to  it  by  the  legis- 
lature, not  at  its  own  particular  instance  or 
application,  but  because  it  was  one  of   the 
political   subdivisions   of   the   state,    and,   as 
such,  was  entitled  to  exercise  it.    How  could 
it  justly  be  said  that  the  maintenance  of  the 
waterworks  system,  any  more  than  of  a  fire 
department,    was   a   matter   of   private    cor- 
porate interest?    Is  it  not  for  aU  the  inhab- 
itants and  for  their  good  and  protection?    No 
interest  was  designed  to  be  subserved  other 
than  that  of  adding  to  the  powers  of  a  com- 
munity carrying  on  a  local  government.    If 
that  is  tioie,  the  alternative  is  that,  being  for 
public  purposes,  and  for  the  general  welfare 
and  protection,  the  defendant  assimied  a  gov- 
ernmental   function,    and   comes    under    the 
sanction  of  the  rule  which  exempts  govern- 
ment from   suits  by  citizens.    Further  elab- 
oration of  the  subject  is  quite  possible,  but 
the  views  expressed  seem  sufficient  to  justify 
the  conclusion  that  the  determination  reached 
by  the  general  term  was  erroneous.    The  or- 
der and  judgment  appealed  from  should  be 
reversed,  and  the  judgment  entered  at  the 
special  term  should  be  affirmed,  with  costs. 
All   concur;    BARTLETT,   J.,   upon   grounds 
stated  in  the  opinion,  and  also  upon  the  fur- 
ther ground  that  this  court  decided  the  prin- 
ciple here  involved  in  Hughes  v.  Monroe  Co., 
147  N.  Y.  49,  41  N.  E.  407.    Ordered  accord- 
ingly. 


324 


MUNICIPAL  LLIBILITY. 


FIFIELD  V.  COMMON  COUNCIL  OF  CITY 
OF   PHOENIX. 

(36  Pac.  916.) 

Supreme  Court  of  Arizona.      March  8,  1894. 

Appeal  from  disti-ict  court,  :Maricopa  coun- 
ty; before  Chief  Justice  A.  C.  Bjilier. 

Action  by  George  Fifield  against  the  com- 
mon council  of  the  city  of  Phoenix.  From 
a  judgment  for  defendant,  plaintiff  appeals. 
Affirmed. 

Kibbey  &  Israel,  for  appellant.  L.  H. 
Chalmers,  for  appellee. 

HAWKINS,  J,  This  was  an  action  by  ap- 
pellant to  recover  damages  for  personal  in- 
juries sustained  by  him.  He  based  his 
claim  for  relief  upon  the  facts  that  the  ap- 
pellee is  a  municipal  corporation  created  by 
an  act  of  the  legislative  assembly  of  the  ter- 
ritory, approved  February  25,  ISSl,  and  an 
act  of  March  11,  1SS5,  amendatory  thereof; 
that  the  corporation,  in  1889,  ordained, 
among  other  things,  that  it  should  be  unlaw- 
ful for  any  person  within  certain  city  limits, 
to  make  any  bonfire,  discharge  any  firecrack- 
ers, skyrockets,  or  any  fireworks  whatever, 
etc.,  without  first  having  obtained  permission 
therefor  from  the  city  marshal  (this  ordi- 
nance was  in  effect  at  the  time  of  appellant's 
injuries);  that  on  the  15th  day  of  February, 
1893,  the  city,  by  and  through  its  members, 
its  mayor,  and  its  marshal,  unlawfully  and 
negligently  granted  to  certain  Chinese  per- 
mission to  set  off,  discharge,  and  explode 
fireworks  upon  certain  streets  of  said  city, 
within  the  fire  limits;  that  appellant,  a  hack 
driver,  on  that  day,  while  in  the  proper  pm-- 
•  uit  of  his  business,  was  driving  along  the 
streets  of  said  city;  that,  while  so  driving 
along  a  street  within  said  fire  limits,  the 
Chinese,  acting  under  the  permit  so  granted 
them,  fired  off  and  exploded  a  large  quanlity 
of  fireworks,  firecrackers,  and  bombs,  where- 
upon appellant's  horses  (they  being  gentle 
and  well  broken)  became  frightened  and  un- 
manageable, and  threw  appellant  to  the 
ground,  all  without  fault  upon  his  part,  and 
he  was  thereby  very  seriously  injm-ed,  sus- 
taining a  vei-y  serious  fracture  of  the  leg, 
and  otherwise  bruised.  The  court  below 
sustained  a  general  demurrer  to  the  com- 
plaint on  this  state  of  facts,  and  appellant 
asks  that  the  ruling  be  reversed. 

Section  7  of  article  18  of  the  chaxter  of 
the  city  of  Phoenix  provides,  as  follows: 
"Sec.  7.  That  said  corporation  shall  not  be 
liable  to  any  one,  or  for  any  loss  or  injury 
to  person  or  property  growing  out  of  (.r 
caused  by  the  malfeasance,  misfeasance,  or 
neglect  of  duty  of  any  officer  or  other  au- 
thorities of  said  city  or  for  any  injury  or 
damages  happening  to  such  person  or  prop- 
erty on  accoimt  of  the  condition  of  any  zan- 
ja,  sewer,  cesspool,  street,  sidewalk  or  pubUc 
ground  therein,  but  this  does  not  exonerate 
any  officer  of  said  city  or  any  other  person 
from  such  liability  when  such  casualty   or 


accident  is  caused  by  willful  neglect  of  duty 
enforced  upon  such  officer  or  person  by  law 
or  by  the  gross  negligence  or  willful  miscon- 
duct of  any   such  officer  or   person   in  any 
other  respect."  •  It  seems  to  us  that  any  fair 
construction    of    this    section    inhibits    such 
form  of  action  against  the  city.     Appellant, 
in  his  reply    brief,  disclaims  any  negligence 
on  the  part  of  the  city  marshal  in  granting 
the  permit,  but  says  it  became  the  negligent 
act  of  the  city  itself,  and  such  city  was  an 
agency  in  the  committing  of  the  injury.    We 
are  unable  to  agree  to  this  line  of  argument. 
It  could  not  do  more  than  to  undertake  the 
evasion  of  the  plain  letter  of  the  city  char- 
ter.    Under  this  charter,  if  the  city  officer 
performs  an  act  which  is  authorized  by  an 
ordinance,  it  would  not,  on  his  part,  be  neg- 
ligence.    Then,  how  could  it  become  negli- 
gence on  the  part  of  the  city  itself?     Ply- 
mouth,  Ind.,   had   an  ordinance   prohibiting 
the  firing  of  gunpowder,  ^v  any  other  sub- 
stance,   except   on    occasions    of   public    re- 
joicing, when  the  mayor  granted  permission 
to  fire  guns,   cannons,   and   other  things  in 
which    gunpowder    was    used.     On    the    4th 
of  July,  1885,  the  mayor  gninted  permission 
to  fire  gunpowder  in  an  anvil  on   a   lot  in 
said   city;    and    when   it   was  fired   it   blew 
gravel    and    stones    against    one    Wheeler's 
plate-glass  windows,  and  broke  them.     The 
supreme    com't    of    Indiana,    in    Wheeler    v. 
City  of  Plymouth,  18  N.  E.  53'J,  in  passing 
upon  the  question  of  the  liability  of  the  city, 
says:     "A  city  which  has  an  ordinance  pro- 
hibiting the  fii-ing  of  gunpowder,  but  allow- 
ing the  mayor  to  license  such  firing  on  cer- 
tain occasions,  is  not  liable  for  the  damage 
occasioned  by  the  negligence  of  the  licensees, 
there  being  nothing  to  show  that  the  author- 
ized act  was  necessarily  dangerous."     It  is 
also   decided  in  the  same  case  that  "there  \ 
is  no  actionable  breach  of  corporate  duty  in 
failing  to   enact  a  proper  ordinance,   or  in 
failing  to  enforce  one  that  has  been  enacted; 
and  consequently  this  action  cannot  be  main- 
tained  upon   the   theory    that    there    was    a 
proper  ordinance,  nor  upon  the  theory  thai 
the    ordinance    was    not    enforced."     Under 
this  theory,  it  seems  clear  that  the  action  at 
bar  could  not  bo  maintained  if  the  ordinance 
was   not   enforced.     Then,    upon    what    sys- 
tem of  reasoning  could  it  be  maintained  be- 
cause it  was  suspended  for  a  day?     For  fail- 
ing in  governmental   action,   municipal  cor- 
porations are  responsible  only  to  their  cor- 
porators, or  the  power  creating  them.     Coo- 
ley,  Torts,  620.     It  shows  no  ground  of  ac- 
tion  when  one  complains  that   he  has  suf- 
fered damages  because  the  operation  of  an 
ordinance  which  prevents  the  explosion  of 
fii-eworks   within  the  city  has  been   tempo- 
rarily   suspended.     Id.     Lincoln   v.    City    of 
Boston  (Mass.)  20  N.  E.  329,  was  also  a  case 
where  the  mayor  permitted  the  tiring  of  can- 
non upon  the  commons  under  an  ordinance 
forbidding    it    unless    such    permission    was 
given,  and   the  plaintiff's  horse  took  fright 
and  ran  away  on  a  neighboring  street    This 


FOR  FAILURE  TO  ENFORCE  ORDINANCE. 


325 


license  to  fire  cannon  was  held  to  be  an  act 
of  municipal  govorumeut,  and  the  person 
doing  the  firing  was  not  the  city's  agent,  so 
as  to  make  the  city  liable.  The  firing  of  the 
Chinese  bombs,  in  the  case  at  bar,  was  not 
the  act  of  the  city,  nor  did  the  city  have 
any  agency  in  said  act.  A  licensee  does  not 
thereby  become  the  agent  of  a  municipal 
corporation.  Id.;  Fowle  v.  Alexandria,  3 
Pet.  398.  Cliipf  Jusjjce  Marshall,  in  Fowle 
V.  Alexandria,  says:  "That  corporations  are 
bound  by  their  conti'acts  is  admitted.  That 
money  corporations,  or  those  carrying  on 
business  for  themselves,  are  liable  for  torts, 
Is  well  settled.  But  that  a  legislative  cor- 
poration, established  as  a  part  of  the  gov- 
ernment of  the  country,  is  liable  for  losses 
sustained  by  a  nonfeasance — by  an  omission 
of  the  corporate  body  to  observe  a  law  of  its 
own,  in  which  no  penalty  is  provided— is  a 
principle  for  which  we  can  find  no  prece- 
dent." Rivers  v.  Common  Council,  G5  Ga. 
370.  is  a  well-considered  case,  and  is  very 
similar  to  the  case  at  bar.  The  plaintiff,  a 
minor  child,  while  walking  upon  one  of  de- 
fendant's streets,  was  seriously  gored  by  a 
cow  which  was  running  at  large  in  the 
streets  of  said  city.  She  sued  the  corpora- 
tion for  damages  alleged  to  be  sustained  by 
reason  of  this  misfortune.  It  will  be  no- 
ticed, by  reference  to  the  facts  in  this  case, 
that  the  allegations  of  the  declaration  are 
quite  similar  to  the  complaint  in  the  case  be- 
fore us.  In  1878  the  city  had  an  ordinance 
against  cattle  running  at  large.  This  ordi- 
nance was  suspended  at  thv  time  of  the  in- 
jury to  the  chilcU  Mr.  Justice  Crawford 
!?;iys:  "The  adoption  of  an  ordinance  in  re  - 
erence  to  allowing  cattle  to  run  at  large  in 
the  city  is  one  which  is  wholly  legislative, 
and  therefore  discretionarj'.  It  is  not  liable 
in  damages  for  neglecting,  omitting,  or  re- 
fusing to  notice  the  subject,  or  having  no- 
ticed, it,  and  adopted  an  ordinance  concern- 
ing it,  then  to  repeal  or  suspend  it."  The 
same  reasoning  would  undoubtedly  apply  to 
an  ordinance  against  the  firing  of  bombs, 
etc.  In  the  Georgia  case,  it  was  argued 
that,  so  long  as  a  city  falls  to  legislate,  it  is 
not  liable,  but,  when  it  does,  then  its  lia- 
bility for  damages  accraes.  The  court  was 
unable  to  appreciate  this  difference,  but  cit- 
ed the  case  of  Hill  v.  Board,  72  N.  C.  55,  as 
a  case  directly  in  point.  An  ordinance  pro- 
hibiting the  use  of  fireworks  was  passed,  re- 
mained in  force  some  years,  was  then  sus- 
pended from  the  2oth  day  of  December  to 
.Tanuary  1st,  inclusive.  During  this  time, 
by  the  firing  off  of  squibs,  firecrackers,  and 
Roman  candles,  plaintiff's  house  was  burned, 
for  which  he  sued  the  city.  Held,  that  it 
was  within  the  discretion  of  the  authorities 
to  determine,  from  time  to  time,  what  ordi- 
nances were  proper,  and  that  the  corporation 
was  not  hable.  Also,  see,  Tindley  v.  City  of 
Salem,  50  Am.  Rep.  289;  Hill  v.  Board.  21 
Am.  Kep.  451.  If  the  ordinance  in  question 
had  been  repealed  on  the  day  before  the  ac- 
cident to  appellant,  it  seems  clear  that  there 


could  be  no  liability  against  the  city.  Then, 
upon  what  system  of  reasoning  could  he  re- 
cover simply  because  the  ordinance  was  sus- 
pended on  the  day  of  the  accident? 

Appellant,  in  hi,s  brief,  relies  upon  the 
cases  of  Cohen  v.  Mayor,  etc.,  113  N.  Y. 
532,  21  N.  E.  700;  Spier  v.  City  of  Brooklyn 
(N.  Y.  App.)  34  N.  E.  727.  In  Cohen  v. 
Mayor,  etc.,  the  facts  were  that  the  city,  by 
a  permit,  allowed  a  grocer  to  keep  a  wagon 
in  front  of  his  store,  when  not  in  use.  On 
a  certain  morning,  Cohen  was  walking 
along  the  street,  in  front  of  the  grocer's 
store.  At  the  same  time  a  wagon  loaded 
with  ice  was  passing  in  one  direction,  and 
one  loaded  with  coal  was  passing  in  the 
other.  The  grocer's  wagon,  without  any 
horse  attached,  was  .standing  in  front  of  his 
store.  The  thills  were  tied  up  in  a  perpen- 
dicular position  with  a  string.  Tlie  length 
of  the  wagon  was  parallel  with  the  com-se 
of  the  street  The  ice  wagon,  probably  in 
attempting  to  avoid  the  coal  wagon,  caught 
against  the  wheel  of  the  grocer's  wagon, 
tm-ned  it  around,  and  loosened  the  thills, 
so  that  they  fell,  and  struck  Cohen  on  the 
head,  injuring  him  so  that  he  died  the  next 
day.  The  city  was  held  liable.  The  com-t 
held  that  the  permission  was  not  authorized 
by  law,  and  that  the  owner  of  the  wagon 
acquired  no  right  by  virtue  of  the  licen,se 
to  store  his  wagon  in  the  street,  and  in  do- 
ing so  he  was  clearly  guilty  of  maintaining 
a  nuisance.  The  defendant  was  also  guilty 
because  it  assumed  to  authorize  the  erection 
and  continuance  of  a  nuisance.  The  legal 
power  to  obstruct  the  street  by  grant  of  a 
license  had  been  withheld  by  the  legislatiire 
from  the  city.  Nevertheless,  it  did  grant 
such  a  permit,  and  took  a  compensation  on 
account  of  it  In  thus  doing,  the  city  be- 
came a  partner  in  the  erection  and  con- 
tinuance of  such  nuisance.  Spier  v.  Citj-  of 
Brooklyn,  supra,  was  a  case  where  fire- 
works were  allowed  by  the  mayor,  under 
an  ordinance,  at  the  junction  of  two  narrow 
streets  in  the  city  of  Brooklyn,  and  plain- 
tiff's property  was  desti'oyed,  and  the  city 
was  held  liable;  the  court  having  held  that 
the  circumstances  of  that  particular  case 
made  the  same  a  public  nuisance,  and  the 
plaintiff  recovered  under  that  theory.  Such 
displays,  the  court  seemed  to  think,  should 
be  under  the  supervision  of  the  municipal 
authorities,  and  it  was  probably  entirely 
proper  for  the  coiu-t  to  rule  as  it  did  in  this 
particular  case.  It  was  at  the  junction  of 
two  narrow  streets  of  a  large  city,  com- 
pletely built  upon,  and  where  any  misad- 
venture in  mana.idng  the  discharge  would 
be  likely  to  result  in  injuries  to  persons  or 
property.  The  action  in  the  case  at  bar  is 
not  upon  the  theory  that  the  city  was  guilty 
of  imlawfully  erecting  and  maintaining  a 
nuisance.  A  city  is  liable  for  maintaining  i 
a  niusance,  xmle.ss  expressly  authorized  by 
law  to  do  so.  It  was  on  this  theory  a  re-' 
covery  was  had  in  the  New  York  cases. 
It  may  have  been  an  error  of  judgment  in  I 


326 


MUNICIPAL  LIABILITY. 


fthe  officers  of  the  city  in  granting  ttie  per- 
j  mit  or  suspending  tlie  ordinance  on  the  par- 
'  ticular  sU'cet  on  the  day  alleged,  but  cities 
/  are  not  responsible  for  errors  of  judgment 
'  of  their  officers  in  the  enforcing  of  their 
laws.     "We  must  conclude  that,  both  from 


the  reading  of  the  charter  of  the  city,  and 
the  weight  of  authority,  the  chief  justice 
was  correct  in  .sustaining  the  demurrer,  and 
the  judgment  is  affirmed. 

ROUSE   and   SLOAN,   J  J.,  concur. 


FOR  DEFECTIVE  STREETS. 


327 


JACKSON   V.    CITY   OF   GREENVILLE. 

(IG  South.  382,  72  Miss.  220.) 

Supreme   Court  of  Mississippi.     Oct.   22,   1804. 

Appeal  from  circuit  court,  Washington 
county;    R.  W.  Williamson.  .ludso- 

Action  by  D.  D.  Jackson  against  the  city 
of  Greenville.  From  a  judgment  in  favor 
of  defendant,  plaintifC  appeals.    Affirmed. 

Jayne  &  Watson  and  S.  Akin,  for  appel- 
lant.    J.  H.  Wynn,  for  appellee. 

WOODS,  J.  This  action  was  brought  by 
the  appellant  for  the  recovery  of  damages  for 
injuries  sustained  by  him  in  conseiiuence  of 
defects  in  a  sidewalk  in  the  city  of  Greenville, 
negligently  suffered  to  exist  To  the  declara- 
tion filed,  appellee  interposed  the  plea  of  the 
general  issue,  and  gave  notice  thereunder  (1) 
that  the  iujiu:y  complained  of  was  theresultof 
plaintiff's  own  negligence;  and  (2)  that  at  tlie 
time  of  the  injury,  and  for  a  roascmable  time 
before,  the  defendant  city  had  exercised  and 
exhausted  all  its  powers,  under  the  law,  to 
raise  money  for  the  repair  of  its  streets. 
and  that  all  its  funds  were,  at  the  time  men- 
tioned, exhausted.  After  all  the  evidence  on 
both  sides  had  been  introduced,  at  the  re- 
quest of  the  appellee,  the  court  instructed  the 
jury  peremptorily  to  find  for  the  defendant 
city;  and  from  the  judgment  of  the  court,  fol- 
lowing such  instruction,  this  appeal  is  pros- 
ecuted. We  shall  disincumber  our  consid- 
eration of  the  appeal  by  omitting  any  ref- 
erence to  the  notice  of  exhaustion  of  power 
and  funds  on  the  part  of  the  municipality, 
as  no  evidence  to  support  it  was  offered,  and 
by  omitting  any  discussion  of  the  question 
of  the  contributory  negligence  of  the  appel- 
lant, and  confine  ourselves  to  this  single 
I  question,  viz.:  Was  the  appellant,  at  the 
I  time  of  receiving  the  injury,  malving  such 
•  use  of  the  street  and  sidewalk  as  will  en- 
(  title  him  to  a  recovery  for  hurt  suffered  by 
reason  of  defects  in  the  sidewalk? 

It  is  elementai'y  law  that  streets  are  ^i- 
rnaiily  designed  to  be  used  for  purjposes  of 
transportation  .ind  ti^ayel;  and  the  author- 
ities are  uniform  to  the  effect  that,  in  the 
absence  of  any  express  statute  creating  lia- 
bility, municipal  coii>orations,  clothed  with 
/  plenary  and  exclusive  control  over  their 
streets,  are  yet  liable,  by  implication,  for  iu- 
/  juries  resulting  to  persons  properly  using  such 
/  streets,  for  failure  to  maintain  the  same  in 
a  reasonably  safe  condition  for  travel.  That 
the  rule  as  stated  is  substantially  recognized 
and  applied  by  the  courts  in  cases  of  stat- 
utory and  of  implied  liability  will  appear 
by  examination  of  the  adjudications  of  courts 
of  last  resort  in  both  classes,  and  any  seeming 
want  of  harmony  will,  in  most  instances, 
appear  to  have  arisen  from  failure  to  con- 
fine the  language  of  the  several  courts  to 
the  facts  of  the  particular  case.  What  are 
the  fact^  as  shmvn  in  the  evidence  intro- 
duced on  trial  below  by  the  appelfant,  which 
are  supposed  by  counsel  for  appellee  to  bar 
any  recovery  herein?     We  quote  from  the 


testimony  of  the  appellant:  "The  accident 
occurred  in  this  way:  I  had  a  puppy  there, 
and  I  took  the  puppy  out  on  the  sidewalk, 
and  was  playing  with  him;  and  he  jerked 
loose  from  me,  and  I  made  a  step  to  catch 
it,  and  my  foot  slipped  into  one  of  those 
cracks,  and  jerked  me  down,  and,  before 
I  could  recover,  the  plank  flew  up,  and 
struck  me  on  my  leg.  My  foot  was  fastened 
in  the  crack.  It  was  my  right  foot  in  the 
crack.  I  had  my  left  foot  on  the  ground, 
and  I  jerked  my  right  foot  up.  and  the  plank 
flew  up,  and  struck  me  on  the  left  leg.  It 
produced  a  compound  fracture  of  my 
leg."  On  cross-examination  the  appellant 
said:  "I  was  playing  with  a  dog  when  the 
accident  happened.  I  went  out  to  the  side- 
walk. I  had  a  pointer  puppy  there,  and  was 
playing  with  it.  It  tried  to  get  away  from 
me,  and  my  foot  slipped  off  the  plank,  and 
went  into  the  crack;  and  in  reaching  over, 
I  tried  to  pull  my  foot  out.  and  the  plank 
flew  up,  and  struck  me  on  the  leg.  My  leg 
was  broken.  *  *  *  The  plank  ran  on  the 
sidewalk  crosswise.  !My  foot  was  caught 
crosswise.  Was  standing  rather  crosswise. 
Was  walking  along  when  the  accident  oc- 
curred. Was  playing  with  the  dog.  AVas 
going  nowhere.  *  *  ♦  My  face  was  turn- 
ed towards  the  fence;  turned  south.  The 
dog  was  running  between  me  and  the  pal- 
ing, and  I  stooped  to  catch  him,  and  my  foot 
slipped."  The  case  thus  presented  is  that 
of  a  man  of  full  age  using  the  sidewalk,  not 
for  the  purpose  of  travel,  either  for  business 
or  exercise  or  pleasure,  but  for  the  sole  pur- 
pose of  playing  with  a  dog.  The  appellant 
had  come  out  of  his  boarding  house  to  the 
sidewalk.  He  was  standing,  and  was  not 
going  anywhere.  He  was  playing  with  the 
dog,  and  was  standing  with  his  back  to  the 
roadway,  and  his  face  turned  towards  the 
palings,  when,  in  an  effort  to  catch  the  dog, 
running  between  him  and  the  fence,  he  step- 
ped, and  received  his  injury.  Can  it  be  sat-  / 
isfactorilj'  gathered  from  the  above  state- 
ment that  the  appellant,  when  hurt,  was  f 
making  such  reasonable  use  of  the  street 
or  its  sidewalk,  at  the  time  of  receiving  the  I 
injury  complained  of,  as  will  bring  him 
within  the  category  of  those  for  whom  streets  / 
and  sidewalks  are  designed?  Was  he  a  trav- 
eler on  or  along  the  street,  who,  incidentally  I 
halting  or  turning  aside  upon  his  way,  re- 
ceived his  hurt?  Was  the  municipality  un-  i 
der  any  duty  to  the  appellant  to  keep  in  re-  / 
pair  the  sidewalk  so  that  he  might  safely  f 
use  it  for  the  purpose  of  his  play  with  the 
dog?  Streets,  we  repeat,  are  designed  for 
travel,  primarily;  and  though  it  must  be 
conceded  that  one  using  the  street  for  travel 
may  incidentally  cease  to  move  on  contin- 
uously, and  yet  not  lose  his  right  as  a  traveler 
on  the  highway,  yet  it  cannot  be  deduced 
from  this  concession  that  one  not  using  the 
street  for  travel  may,  nevertheless,  convert 
it,  or  part  of  it,  into  a  playground,  and  in 
so  using  it,  if  injury  occur  while  so  using 
or   misusing   the   street,    by   reason    of   de- 1 


328 


MUNICIPAL,  LIABILITY. 


fects  in  it,  hold  the  negligent  municipality 
j  liable.  To  recover,  the  injured  party  must 
fix  liability  upon  the  municipality;  and.  to 
I  fix  liability,  the  sufferer  must  show  failure 
I  on  its  part  to  discharge  a  duty  to  him.  But 
the  duty  to  repair  and  keep  in  reasonably 
safe  condition  sti-eets  and  sidewalks  is  due 
j  only  to  those  using  the  highways  for  the 
purposes  of  their  creation.  If  a  football 
team  appropriate  a  street  to  its  uses  in 
f)laying  a  game,  and  one  of  the  players  fall 
into  a  hole  in  the  roadway,  and  injury  re- 
sult, would  any  one  be  found  to  say  that 
he  could  rightfully  complain  and  recover? 
In  such  case  the  injured  player  clearly  would 
be  frustrating  the  very  end  for  which  high- 
ways are  ordained,  viz.  the  convenient  and 
safe  transportation  and  travel  of  property 
and  persons.  It  seems  to  us  indisputable 
that  one  contravening  the  law  of  the  crea- 
tion, and  the  ends  for  which  it  was  created, 
cannot  be  heard  to  complain  if  ill  befall  him 
because  of  his  own  wrongdoing. 

Many  cases  have  been  examined  by  us 
where  liability  was  imposed  and  recovery 
had  for  injuries  to  children,  not  of  the  age 
of  discretion,  when  playing  on  the  streets  or 
highways;  but  all  such  cases,  on  well-under- 
stood legal  principles,  are  readily  distin- 
guishable from  the  case  at  bar.  Chicago  v. 
Keefe,  114  111.  222,  2  N.  E.  267,  and  Indianap- 
olis V.  Emmelmen,  lOS  Ind.  530,  9  N.  E.  1.55, 
cited  in  the  brief  of  appellant's  counsel,  are 
of  this  character.  Our  own  adjudications 
are  along  the  same  line,  in  like  cases.  Mack- 
ey  V.  City  of  Vicksburg,  61  Miss.  777,  2 
South.  178;  Vicksburg  v.  McLain,  67  Miss. 
4,  6  South.  774.  When  we  come  to  consider 
the  cases  referred  to  by  the  counsel  wherein 
adults  received  injuries  in  streets,  we  shall 
discover  that  none  of  them,  on  their  facts,  at 
all  resemble  the  ca.se  at  bar.  The  sinewy, 
lucid,  and  caustically  humorous  opinion  in 
Varney  v.  Manchester,  58  N.  H.  430,  was 
upon  these  facts,  in  a  word,  viz.:  Varney, 
the  plaintiff,  went  to  a  certain  street  in  Man- 
chester for  the  purpose  of  seeing  a  proces- 
sion form  on  Decoration  Day.  He  went 
down  one  side  of  the  street  to  the  place 
where  the  procession  was  forming,  and 
crossed  over  the  street  to  get  a  better  view. 
He  stood  looking  at  the  forming  of  the  pro- 
cession, near  a  pile  of  lumber;  and,  after 
so  standing  and  looking  from  three  to  five 
minutes,  the  lumber  fell,  and  crushed  his 
foot.  Held,  that  a  person  is  "traveling  upon  a 
highway"  when  he  is  making  a  reasonable 
use  of  a  highway  as  a  way,  and  that  the  law 
does  not  prescribe  how  long  one  may  stand 
on  a  street  without  ceasing  to  use  the  way 
as  a  way;  but  that  the  question  was  one  of 
reasonable  use,  and  tliis  was  for  a  jury's 
determination,  if  there  is  any  evidence  on 
which  they  could  properly  find  the  use  was 
reasonable.  The  case  of  Murray  v.  McShane, 
52  M(l.  217,  is  that  of  an  adult  lawfully  pass- 
ing along  a  street,  and  stopping  for  an  in- 
stant on  a  doorsill  of  a  house  fronting  the 


street,  for  the  purpose  of  adjusting  his  shoe, 
and  suffering  injmy  in  consequence  of  a 
brick  falling  from  a  dilapidated  wall,  negli- 
gently permitted  to  remain  there.  Held,  that 
travelers  on  a  street  have  not  only  the  right 
to  pass,  but  to  stop  on  necessary  and  reason- 
able occasions,  so  they  do  not  obstruct  the 
street  or  doorway.  In  Duft'y  v.  City  of  Du- 
buque, 63  Iowa,  171,  IS  N.  W.  900,  the  facts 
were  that  Duffy,  who  was  a  workman,  went 
to  the  corner  of  the  two  intersecting  streets 
for  the  purpose  of  doing  some  work  on  a 
house  there  situated.  After  he  had  unload- 
ed some  stuff  from  a  wagon,  he  went  along 
the  sidewalk  to  a  hydrant  eight  feet  in  rear 
of  the  house  and  a  foot  or  two  from  the 
line  of  the  sidewalk.  While  in  the  act  of 
drawing  water  from  the  hydrant,  with  one 
foot  on  the  ground,  and  the  other  on  the 
sidewalk,  a  section  of  a  roof,  negligently  left 
standing  neai',  was  blown  over  by  a  gust  of 
wind,  fell  on  Duffy,  and  inflicted  the  injuries 
of  which  he  complained.  Held,  that  Duffy's 
stopping  to  draw  water  as  stated  was  the 
exercise  of  a  privilege  which  he  might  law- 
fully enjoy,  and  was  a  mere  incident  to  the 
general  use  of  the  sti'eet  which  he  was  mak- 
ing. The  opinions  of  the  Now  England  courts, 
when  liability  in  the  character  of  cases 
which  we  are  considering  is  of  statutory  cre- 
ation, and  in  which,  as  is  sometimes  charged, 
exti-eme  and  antiquated  views  ai-e  announ- 
ced, it  will  be  found,  on  careful  analysis,  are 
not  out  of  general  accordance  with  the  spirit 
of  the  most,  not  to  say  all,  of  the  decisions 
elsewhere  which  we  have  examined.  In  the 
case  of  Blodgett  v.  City  of  Boston,  8  Allen, 
237,  while  the  court  deny  the  liability  of  the 
city  for  injuries  received  by  a  boy  11  years 
old,  who  was  using  the  plank  sidewalk  on 
the  street  with  another  boy  for  purpose 
of  play  only,  yet  the  opinion  is  careful  to 
limit  the  effect  of  the  decision  by  saying: 
"We  do  not  certainlj'  think  any  narrow  or 
restricted  signification  should  be  given  to  the 
word  'traveler,'  as  used  in  the  statute.  It 
may  well  embrace  within  its  meaning,  as  ap- 
plied to  the  subject-matter,  every  one,  what 
ever  may  be  his  age  or  condition,  who  has 
occasion  to  pass  over  the  highway  for  any 
purpose  of  business,  convenience,  or  pleas- 
ure. *  *  ♦  We  by  no  means  intend  to  say 
that  a  child  who  receives  an  injury  caused 
by  a  defect  or  want  of  repair  in  a  road  or 
street,  while  passing  over  or  throiigh  it, 
would  be  barred  of  all  remedy  against  a 
town  merely  because,  at  the  time  of  the  oc- 
curreuce  of  the  accident,  he  was  also  en- 
gaged in  some  childish  sport  or  amusement. 
There  would  exist  in  such  case  the  impor- 
tant element  that  the  person  injured  was  a'c- 
tually  traveling  over  the  way.  But  this  ele- 
ment is  wholly  wanting  in  the  case  at  bar." 
Here,  as  in  the  case  just  quoted  from,  the  im-| 
portant  element  of  actual  i«e  of  the  way  for[ 
the  purpose  of  travel  is  wholly  absent.  Here,  . 
as  there,  the  case  shows  an  appropriation  of 
a  sidewalk  to  a  use  other  than,  and  incon-  ' 


rOR  DEFECTIVE  STREETS. 


329 


sistent  with,  that  for  which  the  highway 
was  established.  Here,  however,  the  offend- 
er against  the  rights  of  the  public  was  an 
adult,  and  not  a  child  of  debatable  discre- 
tion. Here,  in  addition,  the  play  with  the 
dog  was  not  a  mere  incident  to  the  general 
and  proper  use  of  the  sidewalk  by  the  appel- 
lant in  passing  along  or  over  it  The  city 
oweil  him  no  duty,  in  his  situation,  and  using 
the  street  as  he  was  doing.     The  duty  was 


on  the  municipality   to  keep   and  maintain 
the  street  h\  reasonably  safe  repair  for  trav- 
el, and  liability  ensued  upon  injury  befalling 
one  going  along  or  over  it,  whether  for  pur- 
poses of  business  or  pleasure,  by  reason  of  , 
failure  to  keep  and  perform  this  duty.     But  | 
to  one  simply  using  the  street  or  sidewalk  ' 
as  a  playground  the  city  owed  no  duty  to 
keep  its  streets  for  him  so  engaged  in  any  re- 
pair.    Affirmed. 


330 


MUNICIPAL  LIABILITY. 


HAMILTON  V.  CITY   OF  DETROIT. 

(63  N.  W.  511,  105  Mich.  514.) 

Supreme  Court  of  Michigan.      May  28,  1895. 

Error  to  circuit  court,  Wayne  county;  Wil- 
lard   M.   Lillibridge,   Judge. 

Action  by  Ralph  Hamilton,  Jr.,  by  next 
friend,  against  the  city  of  Detroit,  for  per- 
sonal injuries.  From  a  judgment  for  de- 
fendant, plaintiff  brings  error.    Affirmed. 

Charles  C.  Stewart  (S.  O.  Van  De  Mark, 
of  counsel),  for  appellant.  John  J.  Speed,  for 
appellee. 

McGRATH,   C.   J.    Defendant  had  let  to 
one  Porath  the  contract  for  the  construction 
of  a  public  sewer  in  Wabash  avenue.    Po- 
rath,  for   the   purpose   of    enabling   him   to 
tunnel,  had  put  down  a  shaft  about  6  feet 
square,  and  over  it  had  erected  a  derrick. 
On  the  north  side  of  the  derrick  a  platform 
had  been  erected,  some  5  or  6  feet  from  the 
street  level,   extending   north  30  feet.    The 
clay  was  elevated  in  buckets  to  a  point  above 
the  platform,  and  then  dumped  into  a  light 
car.    The  car  was  then  run  along  the  plat- 
form, and  the  earth  dumped  over  the  side 
1  of  the  platform.    Plaintiff,  who   was  about 
'  five  years  old,  after  work  had  ceased  for 
I  the  day,  had  climbed  up  to  the  top  of  the 
platform,  and,  while  playing  with  the  car, 
I  fell  from  the  south  end  of  the  platform  down 
into  the  shaft,  and  was  injured.    That  part 

I  of  the  street  was  closed  against  travel  and 
guarded  against  accident  to  persons  in  the 
ordinary  use  of  the  street.  The  injury  can- 
/  not,  therefore,  be  said  to  have  resulted  from 
a  defective  condition  of  the  street,  or  from 
a  failure  to  guard  the  excavation  against  in- 
jury to  persons  using  the  highway.  In  this 
respect  the  case  differs  from  City  of  Detroit 
V.  Corey,  9  Mich.  164.  In  Storrs  v.  City  of 
Utica,  17  N.  Y.  104,  cited  in  support  of  that 
opinion,  the  liability  of  the  city  is  put  on  the 
ground  of  its  duty  to  keep  the  streets  in  re- 


pair. In  Bailey  v.  City  of  New  York,  3  Hill, 
531,  the  dam  which  gave  way  was  owned 
by  the  city.  In  Lesher  v.  Navigation  Co., 
14  111.  85,  the  company  was  authorized  by 
its  charter  to  enter  upon  plaintiff's  land, 
and  take  therefrom  material  for  the  con- 
struction of  its  works,  by  making  compensa- 
tion therefor,  and  the  court  held  that  the 
privilege  which  the  charter  conferred  upon 
the  company  devolved  upon  the  contractors 
for  the  same  purpose.  In  other  words,  that 
the  company  could  not,  by  an  agreement 
with  the  contractors  that  the  latter  should 
furnish  the  material,  authorize  such  con- 
tractors to  enter  upon  plaintiff's  land,  and 
take  the  material,  and  deprive  the  owner  of 
the  material  of  the  right  to  claim  compensa- 
tion therefor  from  it.  The  contractors'  jus- 
tification, in  an  action  against  them  for  tres- 
pass, would  have  been  the  authority  con- 
ferred upon  the  company,  and,  so  far  as 
plaintiff  was  concerned,  the  taking  was  by 
the  company  under  the  authority  so  con- 
ferred. In  no  sense  was  the  agency  a  gen- 
eral one,  so  as  to  make  the  company  liable 
for  the  debts  or  torts  of  the  contractors.  In 
the  Corey  Case  the  court  held  that  the  city 
took  its  power  with  the  understanding  that 
it  should  be  so  executed  as  not  necessarily 
to  interfere  with  the  rights  of  the  public  in 
the  streets,  and  that  all  needful  and  proper 
measures  would  be  taken,  in  the  execution 
of  the  power,  to  guard  against  accident  to 
persons  lawfully  using  the  highways.  The 
liability  of  the  city  is  coextensive  with  its 
duty  respecting  the  ordinary  use  of  the  high- 
way, but  cannot  be  extended  beyond  that 
limit  to  a  case  like  the  present,  where  a 
child  had  been  attracted  by  the  machinery 
employed  in  the  construction  or  operation  of 
the  work,  and  thereby  induced  to  climb  upon 
or  over  the  barriers  or  guards,  into  the  exca- 
vation. This  conclusion  renders  it  unneces- 
sary to  consider  the  other  questions  raised. 
The  judgment  is  aflarmed.  The  other  justices 
concurred. 


rOK  DEFECT  IN  SIDEWALK  OUTSIDE  OF  STREET. 


331 


CITY  OF  CHADRON  v.  GLOVER. 

(62  N.  W.  G2,  43  Neb.  732.) 

Supreme  Court  of  Nebraska.     Feb.  5,  1895. 

Error  to  district  court,  Dawes  county;  Kin- 
kaid,  Judjje. 

Action  by  Eliza  J.  Glover  against  the  city 
of  Cliadron.  .Tudgment  for  plaintiff,  and  de- 
fendant brings  error.    AtRrmed. 

Spargur  &  Fisher,  for  plaintiff  in  error.  C. 
Dana  Sayrs  and  A.  W.  Crites,  for  defendant 
in  error. 

IRVINE,  C.i  *  *  *  *  * 

(It  is  also  contended  that  the  injury  occurred 
at  a  point  outside  of  the  line  of  the  sidewalk, 
as  established  by  ordinance.     It  would  seem 
/  from  the  evidence  that  at  this  point  a  side- 
walk about  12  feet  wide  existed,  extending 
from  the  outer  line  of  the  sidewalk,  elsewhere 
•  along  the  street,  back  to  a  rink  used  for  pub- 
;  lie  entertainments,  while  the  ordinance  pro- 
1  vided  for  a  sidewalk  only  four  feet  in  width. 

I  It  is  uncertain  whether  the  defect  complain- 
ed of  was  within  the  four  feet  or  beyond  it; 

1  Part  of  the  opinion  is  omitted. 


but,  assuming  that  it  was  beyond  the  limit 
established  by  ordinance,  still  the  evidence 
shows  that  the  situation  was  much  the  same 
as  in  Foxworthy  v.  City  of  Hastings,  25  Neb. 
133,  41  N.  W.  132.  At  least,  it  is  clear  that 
the  whole  formed  a  continuous  walk,  open  to 
the  public,  and  that  the  city  had  exercised 
control  over  the  whole  thereof.  The  city  i, 
having  permitted  the  sidewalk,  its  duty  to 
maintain  the  same  is  not  affected  by  the  fact 
that  under  its  ordinance  a  narrower  walk 
might  have  been  erected.  Foxworthy  v.  City 
of  Hastings,  25  Neb.  133,  41  N.  W.  132;  Kin- 
ney V.  City  of  Tekemah,  30  Neb.  605,  40  N.  W. 
So5. 

It  is  still  further  urged  that  the  action  is 
at  least  prematurely  brought,  because  the 
plaintiff  had  filed  a  claim  with  the  city  which 
had  not  been  acted  upon  when  the  suit  was 
brought.  Under  the  statute  relating  to  cities 
of  the  class  of  Chadron,  the  total  failure  to 
present  a  claim  of  this  character  does  not 
bar  an  action.  Comp.  St  c.  14,  §  80;  Nance 
V.  Falls  City,  16  Neb.  So,  20  N.  W.  109.  In 
all  other  respects  we  think  there  is  ample 
evidence  to  sustain  the  verdict,  but  a  review 
of  the  evidence  would  be  useless.  Judgment 
affirmed. 


332 


MUNICIPAL  LIABILITY. 


BLYHL  V.  VILLAGE  OF  WATERVILLE. 

(58  N.  W.  817,  57  Minn.  115.) 
Supreme  Court  of  Minnesota.     April  20,  ISM. 
Appeal  from  district  court,  Le  Sueur  county; 
Francis  Cadwell,  Judge. 

Action  by  Alexander  Blyhl  against  the  Til- 
lage of  Waterville  to  recover  for  personal  in- 
juries. Judgment  for  the  plaintiff.  Defend- 
ant appeals.     Affirmed. 

M.  R.  Everett  and  H,  S.  Gipson,  for  ap- 
pellant. F.  B.  Andrews  and  John  Noonan, 
for  respondent. 

GILFILLAN.  C.  J.  The  defendant,  a  mu- 
nicipal corporation,  required  an  owner  of  a 
lot  abutting  on  one  of  its  streets  to  construct 
a  plank  walli  along  the  street  by  the  side  of 
his  lot,  and  he  constructed  it  on  a  grade  giv- 
en him  by,  and  under  the  direction  and  with 
the  approval  of,  defendant's  street  commis- 
sioner. As  consti'ucted,  the  walk  made,  at  the 
junction  of  this  new  walk  with  the  walk 
along  the  remainder  of  the  block,  a  drop  or 
step  seven  or  eight  inches  in  height.  It  is 
apparent  there  was  no  necessity  or  reason  for 
having  the  drop  instead  of  gradually  sloping 
the  grade  of  the  new  walk  until  it  came  to 
the  grade  of  the  remainder.  It  is  also  appar- 
ent that  so  sloping  it  would  have  made  a 
safe  walk,  and  that  the  drop  made  it  dan- 
gerous to  one  passing  along  it  in  the  dark. 
After  the  walk  had  been  in  that  condition 
for  about  a  month,  plaintiff,  passing  along 
it  in  the  dark,  hit  his  foot  against  the  face 
of  the  drop,  and  fell,  and  was  injured,  and 
brings  this  action  to  recover  for  the  injiu-y. 
From  a  judgment  after  verdict  in  his  favor 
the  defendant  appeals. 

I    Unless  the  defendant  is  exempt  from  lia- 

'bUity  on  the  ground  claimed  by  it  as  herein- 
after stated,  the  existence  of  the  drop  in 
/  the  sidewalk  to  the  knowledge  of  defendant, 
through  its  street  commissioner,  was  suffi- 
cient to  make  defendant's  negligence  a  ques- 
tion for  the  jury.  Tabor  v.  City  of  St.  Paul, 
36   Minn.   ISS,  30  N.   W.  765.     The  defend- 

\  ant  claims  it  cannot  be  held,  because  the  de- 
fect in  the  walk  was  in  the  plan  on  which 
(  it  was  constructed;  that  the  adoption  by  a 
municipal  corporation  of  a  plan  for  a  public 

)  improvement  is  a  legislative  or  discretion- 
ary function,  and  that  the  corporation  is  not 

I  liable  for  the  consequences  of  any  error  in 
the  discharge  of  such  functions.  That  a 
)  municipal  corporation  is  not  liable  for  conse- 
quential injuries  arising  from  the  bona  fide 
exercise  of,  or  omission  to  exercise,  those 
powers  which  are  conferred  on  its  council 

I  or  legislative  body,  and  the  exercise  of  which 
as  to  the  time,  extent,  and  manner  is  left  to 

I  the  discretion  or  judgment  of  such  body,  has 
been  fully  recognized  by  this  court  Lee  v. 
City  of  Minneapolis,  22  Minn.  13;    Aldcu  v. 

f  Same,  24  Minn.  254.     Most  municipal  public 

'  improvements  come  within  such  powers. 
Thus,  unless  controlled  by  charter  provisions. 


when  street  grades  shall  be  established,  and 
on  what  planes  or  levels;  when  grades  shall  j 
be  changed,  and  to  what  planes;  when 
streets  shall  be  paved,  and  with  what  kind 
of  pavement;  when  sidewalks  and  cross- 
walks shall  be  laid,  and  of  what  material, 
what  sewers,  gutters,  and  catch  basins  shal' 
be  made,  and  when  and  how.^re  usuallj 
left  to  the  judgment  or  discretion  of  the  leg- 
islative body  of  the  corporation.  And  while, 
of  com-se,  it  is  expected  the  best  results  to 
the  people  of  the  corporation  will  follow  the 
efforts  of  that  body,  it  is  not  enjoined  as  a 
duty  to  produce  any  particular  result,  so  that 
failui'e  to  bring  it  about  will  make  the  cor- 
poration hable  for  consequential  injuries. 
The  matter  of  keeping  streets  and  sidewalks 
in  safe  condition  stands  on  a  different  foot- 
ing. It  has  always  been  held  in  this  state 
that  a  municipal  corporation  having  exclu- 
sive control  of  its  streets,  when  the  means 
are  within  its  power,  has  imposed  on  it  a 
positive  duty  to  keep  such  streets  in  reason- 
ably safe  condition.  Scores  of  recoveries  for 
injm-ies  resulting  from  neglect  of  that  duty 
have  been  sustained  in  this  com-t.  The  first 
formal  statement  of  the  rule  was  in  Sliaxtle 
V.  City  of  Minneapolis,  17  Minn.  308  (Gil. 
284)  in  these  words:/"  "It  is  weU  settled  that 
a  municipal  corporation  having  the  exclusive 
control  of  the  streets  and  bridges  within  its 
limits,  at  least  if  the  means  for  performing 
the  duty  are  provided  or  placed  at  its  dispos- 
al, is  obliged  to  keep  them  in  a  safe  condi- 
tion; and  if  it  unreasonably  neglects  this 
duty,  and  injury  results  to  any  person  by 
this  neglect,  the  corporation  is  liable  for  the 
damages  siistained."/  In  this  particular  there 
is  not  only  a  power  conferred,  but  there  is 
also  a  duty  imposed,  to  use  the  power  with 
a  view  to  a  particular  result,  to  wit,  the 
safe  condition  of  the  streets.  Of  this  duty 
Dill.  Mim.  Corp.  (4th  Ed.)  §  1023a.  says: 
"Which  duty  is  not  legislative  or  judicial,  but 
rather,  in  its  natm-e,  ministerial."  It  is  there- 
fore not  left  to  the  corporation's  legislative 
body  to  determine  when  or  to  what  extent 
the  dutj'  shall  be  performed,  nor  to  deter- 
mine it  has  been  performed;  for,  if  it  were, 
it  would  be  a  discretionary,  not  a  positive, 
duty.  That  the  safe  condition  of  sti-eets 
concerns  the  safety  of  life  and  limb,  and  not 
only  convenience  or  property,  is  a  reason  for 
imposing  a  duty  in  respect  to  it  greater  than 
is  imposed  with  respect  to  other  matters  of 
public  improvement.  No  question  is  made, 
nor  can  there  be,  on  the  decisions  that,  if  a 
dangerous  defect  is  due  to  wear,  decay,  ac- 
cident, or  the  act  of  a  third  person,  the  cor- 
poration, upon  notice  of  it,  must  seasonably 
repair  it.  In  this  case,  if  the  property  own- 
er had,  without  authority,  constructed  the 
sidewalk  with  the  dangerous  defect,  it  would 
have  been  the  duty  of  the  corporation  to  sea- 
sonably remedy  it.  The  corporation  might 
adopt  or  ratify  the  plan  on  which  the  ownti' 
constriicted  the  walk;  but  to  hold  that  by  so 
adopting  or  ratifying  it  it  could  avoid  the 


FOR  DEFECTIVE  PLAN  OR  CONSTRUCTION. 


83a 


duty  to  remedy  the  defect  would  enable  it 
to  detcrmiue  whotlior  it  would  perform  tho 
duty  imposed  on  it  or  not,  and  it  wouhl 
cease  to  be  a  duty.  And  if  the  corporation 
is  not  liable  in  case  of  a  danj::erous  defect 
In  a  street  or  sidewalk,  because  the  defect  is 
in  the  plan  previously  adopted  for  its  con- 
struction, then,  althongli  it  is  its  duty  to 
keep  the  streets  in  safe  condition  as  agrainst 
natm-al  causes  or  the  acts  of  third  persons, 
it  is  not  its  duty  to  keep  them  in  such  condi- 
tion as  against  its  own  acts.  And  whether 
it  is  its  duty  or  not  wiU  depend  on  whether 
It  is  responsible  for  the  uu'^afe  condition; 
and  if  it  may,  without  liability,  determine  in 
advance,  in  adopting  a  plan  for  consti'uction, 
that  a  certain  condition  of  the  street  or  walk 
will  be  safe  enough,  we  do  not  see  upon 
what  principle  it  is  to  be  liable  if,  after  the 
condition  exists,  from  whatever  cause,  it  de- 
termines the  street  or  walk  to  be  safe  enough, 
and  to  need  no  repair. 

"We  have  not  used  the  term  "positive  duty" 
In  the  sense  that  the  corporation  insiu-es  the 
safe  condition  of  its  streets,  or  that  it  is 
bound  to  maintain  them  in  that  condition 
without  reference  to  the  difficulties  in  the 
way  of  doing  so.  There  may  be  defects 
that  are  practically  irremediable.  The  to- 
pography of  the  ground  may  be  such  as  to 
render  it  practically  impossible  to  have  the 
streets  entirely  safe.  In  that  case  the  peo- 
ple must  accept  such  as  with  reasonable  ef- 
forts can  be  provided.  The  law  does  not 
require  of  the  corporation  unreasonable 
things,  but  only  that  it  shall  employ,  in  per- 
forming its  duty  as  to  streets,  the  diligence, 
care,  and  skill  that  an  ordinarily  prudent 
person  having  a  similar  duty  to  perform 
would  employ.  If  it  do  so,  there  is  no  un- 
reasonable neglect.  So  far  as  concerns  the 
safe  condition  of  a  street  or  sidewalk,  the 
same  requirement  applies  to  adopting  a  plan 
either  for  its  construction  or  repair.  Of 
course  the  corporation  would  not  be  liable 
merely  because,  in  the  opinion  of  a  jury,  a 
safer  or  better  plan  might  have  been  adopt- 
ed. To  illustrate,  we  may  suppose  a  not  un- 
common case,  where,  owing  to  the  charac- 
ter of  the  surface,  a  sidewalk  must  be  con- 
structed on  one  of  two  plans,  each  leaving 
It  more  or  less  tmsafe, — one  requiring  a  slope 
80  steep  as  to  be  unsafe;   the  other,  steps 


that  will  make  it  unsafe.     The  corporation  , 
would  not  be  liable  for  the  dangers  in  the  / 
plan  adopted  merely  because,  in  the  opinion ' 
of  a  jury,  the  other  would  have  been  safer. 
To   make   the   corporation    liable,   the   plan 
adopted  would  have  to  be  so  much  and  so 
obviously  more  unsafe  than  the  other  as  to 
show  a  neglect  to  employ  the  diligence,  judg- 
ment,   and    skill    in    determining    the  plan 
which  ordinary  care  would  requii'e. 

"We  are  cited  to  some  decisions  In  !Michi- 
gan.  New  York,  and  Pennsylvania  to  the  ef- 
fect that  a  corporation  is  not  hable  for  the 
consequences  of  a  dangerous  defect  in  a 
street  or  walk  due  to  the  plan  adopted  for 
its  construction,  because  it  is  only  an  error 
of  judgment  in  a  matter  resting  wholly  in 
the  judgment  or  discretion  of  the  corpora- 
tion. Those  decisions  are  irreconcilable  in 
principle  with  other  decisions  of  the  same 
com-ts,  and  inconsistent  with  the  proposition 
that  keeping  streets  in  reasonably  safe  con- 
(lition  is  a  matter  of  positive  duty,  and  not 
of  discretion.  "We  are  therefore  of  opinion 
that  the  mere  fact  that  an  unsafe  condition 
of  a  street  is  due  to  a  defect  in  the  plan  for 
its  construction  will  not  shield  the  corpora- 
tion from  liability  for  injm-ies  caused  by 
such  imsafe  condition.  There  is  no  merit 
in  any  of  the  other  points  made  by  appel- 
ant.    Judgment  aflii-med. 

CANTY,  J.  I  agree  with  the  result  in  this 
case  and  with  the  foregoing  opinion,  except 
that  it  seems  to  me  it  does  not  sufficiently 
limit  the  right  of  the  com-ts  to  impeach  or 
review  the  legislative  judgment  in  adopting 
the  plan  of  improvement.  "When  the  alleged 
defect  appears  to  be  a  part  of  the  plan,  it 
shoidd  be  presumed  to  be  of  legislative,  not 
of  ministerial,  origin,  until  the  contrary  Is 
proved.  The  coiu-ts  cannot  review  the  legis- 
lative judgment  at  all.  They  can  impeach  It 
only  when  it  is  not  legislative  judgment  in 
fact.  "Unless  it  appears  that  the  alleged  de- 
fect is  of  ministerial  origin,  it  must  appear 
that  there  is  such  gross  mistake  in  the  adop- 
tion of  the  plan  as  woidd  imply  a  failm-e 
to  exercise  the  legislative  judgment.  If  two 
reasonable  minds  might  have  adopted  differ- 
ent plans,  the  legislative  judgment  cannot  be 
impeached  for  having  adopted  either  one  of 
these  plans. 


334 


MUNICIPAL  LIABILITY. 


CITY  OF  ATLANTA  v.  MILAM. 

(22  S.  E.  43,  95  Ga.  135.) 
Supreme  Court  of  Georgia,     Dec.  4.  1S94. 

Error  from  city  court  of  Atlanta;  Howard 
Van  Epps,  Judge. 

Action  by  John  A.  Milam  against  the  city 
of  Atlanta  for  personal  injuries.  Plaintiff 
had  judgment,  and  defendant  brings  error. 
Plaintiff  also  filed  a  cross  bill  of  exceptions. 
Affirmed,  and  cross  bill  of  exceptions  dis- 
missed. 

The  following  is  the  official  report: 

Milam  sued  the  city  of  Atlanta  for. damages 
from  a  personal  injury  which  he  alleged  he 
received  on  or  about  April  1,  1892,  from  fall- 
ing violently  over  a  high,  iron  projection  near 
the  corner  of  Alabama  and  Broad  streets,  At- 
lanta, negligently  allowed  by  defendant  to 
project  far  out  into  the  public  sidewalk,  and 
obstruct  the  same  for  about  four  feet.  The 
verdict  was  for  plaintiff,  $833.  Defendant's 
motion  for  new  trial  was  overruled,  and  it 
excepted.  The  motion  contained  the  gt?neral 
grounds  that  the  verdict  was  contrary  to 
law,  evidence,  etc.,  and  also  that  it  was  con- 
trary to  certain  specified  portions  of  the 
charge.  Further,  because  the  court  erred  in 
the  following  charge:  "This  duty  of  dili- 
gence extends  to  the  whole  of  the  sidewalk 
which  is  intended  for  travel  by  the  public 
as  a  thoroughfare  for  travel,  and  is  not  con- 
fined to  any  special  part  of  the  sidewalk  in 
use  by  the  general  public  in  walking  along 
there.  It  is  bound  to  keep  all  of  its  width 
reasonably  safe  for  persons  to  travel  along 
its  entire  width."  Alleged  to  be  error  be- 
cause it  did  not  fairly  submit  to  the  jury  de- 
fendant's contention  that  the  strip  of  iron 
was  not  an  actionable  defect  in  the  street, 
but  was  only  a  proper  part  of  an  ordinary, 
necessary,  and  reasonable  appurtenance  of 
the  Inman  Building,  which  abutted  on  the 
street  at  that  point.  During  the  trial,  before 
the  close  of  plaintiff's  evidence,  defendant 
moved  the  court  to  send  tlie  jury,  in  charge 
of  the  court's  bailiff,  to  inspect  and  view 
for  themselves  the  alleged  defective  side- 
walk, grating,  and  iron  over  which  it  was  al- 
leged plaintiff  fell.  Plaintiff  objected  on  the 
ground  that  the  court  had  no  authority  to 
send  out  the  jury  in  this  manner,  and  to 
take  evidence,  in  this  manner,  that  could  not 
be  reviewed  by  the  court,  and  on  the  ground 
that  it  was  improper  in  this  case,  as  plaintiff 
denied  that  the  defective  premises  were  in 


the  same  condition  as  when  plaintiff  fell. 
These  objections  the  court  overruled,  and  or- 
dered the  jury  to  be  sent,  in  charge  of  the 
bailiff,  to  view  the  alleged  defective  premises 
and  sidewalk,  which  was  accordingly  done. 
To  this  action  of  the  court  plaintiff  assigns 
error,  by  cross  bill  of  exceptions. 

J.  A.  Anderson  and  Fulton  Colville,  for 
plaintiff  in  error.  Arnold  &  Arnold  and  C. 
D.  Hill,  for  defendant  in  error. 

LUMPKIN,  J.  The  facts  are  stated  by  the 
reporter.  The  law  of  this  case  is  not  very 
complicated.  While,  of  course,  in  mcst 
American  cities,  water  plugs,  telegraph  and 
telephone  poles,  trees,  and  other  things,  are 
allowed  upon  the  margins  of  sidewalks,  and 
pedestrians,  therefore,  are  not  expected  to 
use  such  portions  of  the  same  as  are  occupied 
by  these  obstructions,  still  there  can  be  no  1 
doubt,  under  the  rules  of  law  now  settled  by  | 
repeated  adjudications  in  this  and  other  ju-  j 
risdictions,  that  the  city  authorities  must  | 
keep  in  a  reasonably  safe  condition  all  parts  I 
of  its  sidewalks  which  are  intended  to  bej 
used  by  the  public.  It  may  often  happen  that ! 
'in  a  particular  locality  a  comparatively  nar- 
row portion  of  a  sidewalk,  on  either  side  or 
in  the  middle  of  it,  is  much  more  generally 
used  than  other  portions  of  the  same;  but 
this  does  not  relieve  the  municipal  authoi-i- 
ties  from  liability  for  negligence  in  permit- 
ting dangerous  obstructions  to  be  continu- 
ously maintained  in  places  upon  sidewalks 
over  which  the  public  have  a  right  to  pass, 
merely  because  those  places  are  not  so  much 
used  as  others.  It  appeared  in  this  case  that 
the  obstruction  over  which  the  plaintiff  fell 
had  existed  for  a  considerable  time,  and  was 
located  upon  a  portion  of  the  sidewalk  over 
which  he  had  a  right  to  walk.  The  evidence 
as  to  the  dangerous  character  of  the  side- 
walk was  rather  weak, — so  much  so  that  we 
would  very  probably  have  set  aside  the  ver- 
dict in  the  plaintiff's  favor,  had  it  not  been 
for  the  fact  that  the  jury,  at  the  request  of 
the  defendant,  were  permitted  to  personally 
insjiect  the  obstruction,  and  form  their  .own 
opinion  concerning  it,  by  ocular  demonstra- 
tion. We  are  constrained  to  hold  that  they 
were  better  judges  on  the  subject,  after  this 
opportunity  of  obtaining  infonnation,  than 
we  could  possilily  be  from  a  mere  paper  re- 
port of  the  testimony  introduced  in  the  case. 
We  will  therefore  allow  the  verdict  to  stand. 
Judgment  affirmed. 


WHEN  DEFECT  IS  NOT  PKOXIMATE  CAUSE  OF  INJURY. 


335 


TOWN  OF   FOWLER  v.    LINQUIST. 

(37  N.  E.  133,  138  Ind.  5G0.) 

Supreme    Court    of    Indiana.     April    17,    1894. 

Appeal  from  circuit  court,  Newton  county; 
E.  P.  Hammoud,  .ludsc 

Action  by  Charles  Linquist  against  the 
town  of  Fowler  for  persoaal  injuries.  From 
a  judgment  for  plaintiff,  defendant  appeals. 
Affirmed. 

W.  D.  Wallace  and  S.  P.  Baird,  for  apix}l- 
Lant.  J.  D.  Brown  and  G.  H.  Gray,  for  ap- 
pellee. 

HOWARD,  C.  J.  This  was  an  action  by 
the  appellee  against  the  appellant  to  recover 
damages  for  pei-soual  injuries  alleged  to  have 
been  caused  by  an  obsti'uctiou  in  one  of  the 
streets  of  said  town.  On  the  overruling  of 
demurrers  to  the  complaint  the  appellant  an- 
swered in  general  denial,  and  also  by  two 
special  pleas,  to  the  lirst  of  which  a  demm-- 
rer  was  overruled,  while  to  the  second  a  de- 
murrer Avas  sustained.  The  issues  joined 
were  ti-ied  by  a  jm-y,  and  by  agreement  the 
jury  returned  into  court  their  special  ver- 
dict on  all  the  issues  in  the  cause.  The  ma- 
terial facts  found  are:  That  Park  sti-eet, 
in  the  town  of  Fowler,  in  Benton  county,  is 
a  public  sti'eet,  which  was  laid  out  and  dedi- 
cated many  years  ago,  and  accepted  by  said 
town,  and  which  for  many  years  past  has 
been  used  and  traveled,  and  was  on  the  27th 
day  of  October,  1891,  used  and  ti-aveled,  by 
the  citizens  of  said  town  and  by  the  public. 
That  in  April  or  May,  1891,  one  Jacob  Lucas 
erected  a  fence  across  said  street,  from  the 
southeast  corner  of  outlet  29  to  the  south- 
west corner  of  outlot  28  of  Fowler's  addition 
to  said  town,  and  within  the  corporate  limits 
thereof.  Said  fence  consisted  of  four  or  five 
oak  posts  firmly  planted  to  the  depth  of 
about  tw  >  feet  in  the  ground,  with  wire 
strung  thereon,  and  securely  fastened.  In 
the  center  of  said  sti-eet,  in  said  fence,  was 
a  gate  fastened  between  two  of  said  posts. 
In  the  summer  of  1891  said  obstruction  was 
entirely  removed,  except  one  post,  which  re- 
mained standing,  and  of  which  appellant  at 
the  time  had  notice.  This  post  stood  about 
four  or  five  feet  above  the  ground,  and  about 
three  feet  west  of  the  ti'aveled  part  of  said 
street.  That  appellant  had  due  notice  and 
full  knoAA'ledge  of  said  obstruction  from  May, 
1891,  and  at  all  times  since  then  up  to  the 
27th  day  of  October,  1891,  and  tliereafter, 
two  of  the  trustees  of  the  town  having  actu- 
al notice  during  all  said  time,  but  the  town 
took  no  steps  to  remove  the  obstmction. 
The  town  marshal  also  had  full  knowledge 
of  the  obstruction  during  all  said  time.  That 
on  said  27th  day  of  October,  1891,  the  ap- 
pellee, who  is  a  fai'mer  and  laborer  living 
in  the  southeast  part  of  said  town,  was 
traveling  soutliward  towards  his  home  on 
said  Pai'k  street,  driving  a  sj)an  of  mules 
hitched  to  a  two-horse  wagon,  with  a  hay 
ladder  thereon,  at  a  slow  rate  of  speed,  in 


a  careful  and  cautious  manner,  without  any 
knowledge  of  the  existence  of  said  post,  hav- 
ing been  informed  some  four  or  five  weeks 
prior  tliereto  that  said  post  had  been  taken 
down,  and  believing  that  it  had  been  re- 
moved; and  while  so  ti'aveling  upon  said 
street  his  mules  became  frightened  at  some 
stray  horses  that  were  gi'azing  in  sjxid  street, 
without  his  fault  or  negligence,  at  or  near 
said  post,  which  stray  horses  caused  said 
mules  to  shy  to  one  side,  whereby  the  hay 
frame  that  was  on  said  wagon  collided  with 
and  caught  upon  said  post,  which  produced 
a  sudden  jerk  and  shock  of  said  hay  ladder, 
tlirowing  the  appellee  off  the  wagon  and  be- 
tween the  mules,  without  fault  of  his.  That 
the  nppelleo's  leg  was  caught  between  the 
spokes  of  one  wheel  of  the  wagon,  and  was 
thereby  twisted,  wrenched,  and  broken  with- 
out his  fault.  That  said  accident  occiured 
at  or  near  7  o'clock  in  the  evening  of  said 
day,  and  when  it  was  dark.  That  when  said 
mules  became  frightened,  and  before  the 
hay  ladder  collided  with  the  post,  the  appel- 
lee pulled  on  the  lines,  and  used  every  effort 
in  his  power  to  check  the  mules,  but  was  un- 
able to  control  them.  That  for  several  rods 
before  the  mules  became  frightened  the  ap- 
pellee was  driving  slowly,  and  that  the  mules 
were  not  accustomed  to  run  away  or  to  be- 
come frightened.  That  appellee  was  stand- 
ing up  on  said  hay  ladder,  driving  the  mules 
with  lines,  and  looking  forward  to  see  any 
obstruction  that  might  be  on  said  street. 
That  the  street  is  about  GO  feet  wide  at  the 
place  of  said  obstruction,  and  the  sin*face  of 
the  ground  is  comparatively  level.  That  the 
post  was  imguarded,  and  without  light  or 
;■  nals  to  warn  ti'avelers  of  its  location. 
That  said  mules,  while  so  frightened  and 
beyond  tlie  conti-ol  of  appellee,  drew  the 
wagon  out  of  the  ti-aveled  part  of  the  sti'eet, 
and  near  to  said  post,  causing  the  collision, 
after  which  the  mules  ran  off  with  th(> 
wagon,  leaving  the  appellee  helpless  upon  the 
groimd,  with  both  bones  of  the  left  leg  bro- 
ken between  the  knee  and  ankle,  where  he 
remained  until  assistance  arrived,  and  he 
was  carried  home.  That  he  was  at  once  at- 
tended by  a  competent  physician  and  sur- 
geon, who  properly  and  skillfidly  ti'eated 
him,  and  that  all  proper  attention  was  given 
him.  That  the  knee  joint  is  partially,  and 
the  ankle  wholly,  stiff,  and  the  leg  crooked, 
and  two  inches  short,  and  the  appellee 
maimed  and  crippled  for  life,  and  wholly  in- 
capable of  performing  manual  labor  or  piu*- 
suing  his  iisual  avocations.  That  he  has  suf- 
fered and  endured  great  p:un  and  tortm-e, 
both  physically  and  mentally.  That  at  the 
time  of  and  prior  to  receiving  said  injuries 
the  appellee  was  a  strung,  healthy  man,  and 
was  industrious.  That  he  is  51  years  of  age, 
and  has  a  wife  and  eight  minor  children, 
who  are  wholly  dependent  upon  him  for 
support.  That  by  reason  of  said  injuries  he 
has  sustiiined  damages  in  the  sum  of  ij^G.OOO. 
A  motion  for  a  venire  de  novo  was  over- 


336 


MUNICIPAL  LIABILITY. 


03 


ip.) 


ruled.  A  motion  for  a  new  trial  having 
been  filed,  the  appellee  filed  a  remittitur  of 
$1,000  of  the  damaj::es  allowed  by  the  ver- 
dict of  the  jury,  whereupon  the  motion  for  a 
new  trial  was  overruled.  The  appellant  then 
filed  a  motion  for  judgment  in  its  favor  up- 
on the  verdict,  which  was  also  overruled. 
Judg-ment  for  $5,000  was  then  rendered  in 
favor  of  appellee.  After  the  evidence  was 
given,  and  before  the  argument  of  counsel, 
the  appellant  moved  the  court  to  instruct 
the  jury  to  return  a  verdict  for  the  appel- 
lant, on  the  ground  that  appellant  was  not 
liable  for  the  injuries  suffered  by  appellee. 
This  motion  was  overruled,  which  ruling  Is 
made  one  of  the  grounds  of  the  motion  for  a 
new  ti'ial.  The  motion  for  a  verdict  in  favor 
of  the  appellant  is  brought  into  the  record 
by  special  biU  of  exceptions. 

Many  assignments  of  error  are  made,  but 
the  chjef  reason  argued  why  the  judgment 
should  be  reversed  is  that  it  was  not  shown 
that  the  place  where  the  injury  was  re- 
ceived was  a  public  street.  It  is  not  ques- 
tioned that  in  ISTo — more  than  16  years  be- 
fore the  time  of  the  injuries  complained  of— 
Fowler's  addition  to  the  town  of  Fowler, 
including  Park  street,  and  the  place  therein 
where  the  injuries  were  received,  was  duly 
platted,  and  the  plat  acknowledged  and 
recorded.  But  appellant  first  objects  that 
no  proof  other  than  the  plat  was  introduced 
to  show  that  at  the  time  of  making,  filing, 
and  recording  such  plat  Moses  Fowler  was 
the  owner  of  the  land  so  platted.  This  is  not 
a  controversy  as  to  the  ownership  of  the 
ground  occupied  by  the  street.  No  one  claim- 
ing to  be  the  owner  of  the  land  occupied  by 
the  street  is  here  as  a  party  denying  the  dedi- 
cation. In  such  case  strict  proof  of  ownership 
is  not  required,  as  in  ejectment.  There  was 
in  the  court  below  no  denial  of  ownership 
in  the  dedicator  at  the  time  of  the  dedica- 
tion, and  the  evidence  shows  continued  use 
<<r  the  street  by  the  public  ever  since,  except 
dm-ing  the  short  time  that  the  fence  was 
placed  across  it  As  between  the  parties  to 
this  action,  the  plat  of  Fowler's  addition  on 
which  "Park  Street"  appears,  and  which 
was  filed  and  recorded  in  the  recorder's  of- 
fice for  more  than  16  years  prior  to  October 
27,  1801,  is  prima  facie  evidence  of  owner- 
ship by  Fowler  of  the  land  so  dedicated,  and 
of  his  intention  to  so  dedicate  it.  2  Greenl, 
Ev.  §  662;  Railroad  Co.  v.  Andrews,  41  Kan. 
370,  21  Pac.  276;  State  v.  Hill,  10  Ind.  219. 
See,  also.  City  of  Indianapolis  v.  Kingsbmy, 
101  Ind.  202;  Elliott,  Roads  &  S.  p.  121  et 
seq. 

It  Is  next  contended  that  there  was  no 
acceptance  of  the  dedication,  eitlier  by  the 
town  or  by  the  public.  Tlie  jiiry  expressly 
found  "that  there  is  a  public  street  in  said 
town  of  Fowler  named  and  known  as  'Park 
Street,'  which  was  laid  out  and  dedicated  to 
said  town  many  years  ago,  and  accepted  by 
said  town,  beginning  at  the  north  limits  of 
said  town,  running  due  south  through  said 


town  to  the  south  line  of  said  town,  which 
street  for  many  years  past  has  been  used 
and  traveled,  and  was  on  the  27th  day  of 
October  last  traveled,  by  the  citizens  of  said 
town  and  by  the  public."  This  finding,  even 
omitting  what  may  be  regarded  as  conclu- 
sions, is,  we  think,  sufficiently  clear  to  show 
acceptance  and  use  of  the  street  by  the 
town  and  by  the  public.  We  have  looked 
through  the  evidence,  and  we  think  that  the 
finding  is  well  supported  by  the  testimony 
of  witnesses,  from  which  it  appears  not 
only  that  the  way  was  used  by  the  public 
long  before  the  dedication  and  ever  since, 
but  also  that  the  town  authorities  worked 
the  street  where  such  work  was  needed. 
The  jtu"y  finds  that  at  the  point  of  the 
accident  the  ground  was  comparatively  level. 
No  work  was  needed  there.  But  there  was 
evidence  of  some  work  by  the  town  authori- 
ties to  the  north  of  the  place  of  the  accident, 
and  also  to  the  south,  where  the  town  mar- 
shal aided  in  the  erection  of  a  bridge  upon 
the  street.  As  to  user  by  the  public,  there  j 
was  evidence  from  which  the  jury  might 
reasonably  conclude  that  the  road  had  been  j 
used  by  the  public  as  a  thoroughfare  for  20  ; 
or  21  years.  This  Is  suflicient.  Elliott, .' 
Roads  &  S.  p.  125  et  seq.,  and  cases  cited; 
Summers  v.  State,  51  Ind.  201. 

It    is    next    contended    that    the    appellee (3) 
should  nof  recover,  for  the  reason  that  he 
knew  of  the  obstniction,  and  should,  there- 
fore, have  avoided   it.     The  appellee,   how- 
ever, testified  positively  that  he  did  not  know 
that  the  post  still  remained  in  the  street,  as 
he  had  been  informed  some  time  before  that 
it  had  been  removed.     Besides,  it  is  agreed 
that    his    mules    were    frightened,    and    the 
evidence   is   undoubted   that  they   shied   off 
the  beaten  track  in  spite  of  all  efforts  made 
by  appellee  to  control  them.     The  post  was  ', 
several   feet  from  the  traveled   track,   and,  | 
even  if  appellee  knew  it  was  still  there,  he 
could  not  be  held  responsible  for  the  fright-  | 
I'uing  of  his  team,  and  their  going  out  of  the 
beaten   track  and   upon   the   post,   when  he 
was  utterly  unable  to  control  them.     We  do 
not  think  that  any   contributory  negligence! 
is  shown.     ]Maus  v.  City  of  Springfield,  101 
Mo.  613,  14  S.  W.  630. 

Counsel  point  out  many  facts  as  to  which 
they  contend  that  there  is  no  finding  in  the  ver- 
dict of  the  jm-y,  but  as  to  which  tliey  say  there 
.should  have  been  findings  under  the  issues. 
Even  if  this  were  true,  it  would,  of  itself,  be  no 
groimd  for  reversal  of  the  judgment,  provided 
facts  sufficient  for  a  recovery  are  found.  A  fail- 
ure to  find  upon  an  issue  in  such  a  case  is  to  be 
taken  as  a  fimling  against  the  party  uiwn  whom 
rested  the  burden  of  proof  upon  that  issue. 
But  we  think  that,  omitting  all  conclusions 
of  law  from  the  verdict,  there  are  siifficient 
facts  found  upon  which  the  judgment  may 
stand.  Neither  can  we  say,  considering  all 
the  circumstances  of  the  case,  that  the  dam- 
ages are  excessive. 

Several  objections  are  ui'ged  against  the 


WIIEX  DEFECT  IS  NOT  TROXIMATE  CAUSE  OF  INJURY. 


337 


complaint,  but  wo  think  tlioy  are  all  without 
(^^substantial    merit.     It   is    clajraed    that    the 
proximate  cause  of  the  accident  was  not  the 
obstruction  in  the  street,  but  the  frightening 
of  the  team  by  the  stray  horses,  and  that  for 
I  this   reason    the    complaint    is    bad.     If   the 
/  town  was  at  fault  as  to  the  obstruction,  and 
the   obstruction    was   one   cause    of   the    in- 
jury, the  town  cannot  escape  responsibility 
because  some  other  cause  aided  in  bringing 
,  about   the   accident.     See   Board   of   Com'rs 
V.  Mutchler  (decided  at  this  term)  3G  N.  E. 
534,   where  a  horse  driven  in  a  buggj'  was 
frightened,    and    backed    off    a    bridge,    but 
where  the  board  of  commissioners  was  held 
responsible  for  the  accident,  for  the  reason 
^BB.COKP.— 22 


that  they  had  neglected  to  place  guards  upon 
the  bridge.  See,  also,  City  of  Crawfords- 
ville  V.  Smith,  79  Ind.  308. 

The  court  did  not  err  in  sustaining  a  de- 
murrer to  the  third  paragraph  of  the  answer. 
In  that  paragraph  it  was  averred,  in  effect,(S^ 
that  appellee  might  have  taken  another  road, 
and  so  avoided  the  obstruction.  The  road 
taken  by  appellee  was  the  most  direct  to 
his  home,  and,  oven  if  it  wore  not  so.  he 
was  not  obliged  to  choose  another  road  when 
this  one  was  open  to  the  public.  See  Board 
of  Com'rs  v.  Mutchler,  supra.  We  have 
found  no  error  in  the  record  for  which  we 
should  be  jus'Jfied  In  reversing  the  judgment. 
The  judgment  is  affirmed. 


333 


MUNICIPAL  LIABILITY. 


FLYNN  V.  TAYLOR. 

(28  N.  E.  418,  127  N.  Y.  596.) 

Conrt  of  Appeals  of  New  York,  Second  Division. 
Oct.  6,  1891. 

Appeal  by  defendant  from  a  judgment  of 
Vhe  general  term  of  the  supreme  court  in  the 
second  judicial  department,  affirming  a  judg- 
ment entered  upon  the  decision  of  the  court 
without  a  jury.     Affirmed. 

Frederlcli  C.  Dexter,  for  appellant  Josiah 
T.  Marean,  for  respondent. 


/, 


VANN,  J.  The  owner  of  land  abutting  up- 
on a  public  street  is  permitted  to  encroach  on 
the  primary  rig^ht  of  the  public  to  a  limited 
extent  and  for  a  temporary  puiipose,  owing  to 
the  necessity  of  the  ease.  Two  facts,  how- 
ever, must  exist  to  render  the  encroachment 
lawful:  (1)  The  obstruction  must  be  reason- 
ably necessary  for  the  transaction  of  busi- 
ness; (2)  it  must  not  unreasonably  interfere 
with  the  rights  of  the  public.  Callanan  v.  Gil- 
man,  107  N.  Y.  300,  14  N.  E.  264;  Welsh  v. 
Wilson,  101  N.  Y.  254,  4  N.  E.  633.  The 
foundation  upon  which  the  exception  seems 
to  rest  is  that  it  is  better  for  the  public  to 
suffer  a  slight  inconvenience  than  for  the  ad- 
jacent owner  to  sustain  a  serious  loss.  Any 
unnecessary  or  unreasonable  use  of  a  street, 
however,  is  a  public  nuisance,  and  is  declared 
by  statute  to  be  a  crime  against  the  order 
and  economy  of  the  state.  Pen.  Code,  §  385. 
A  remedy  for  the  wrong  against  the  public 
may  be  found  in  the  indictment  of  the  of- 
fender, or  in  a  suit  by  the  proper  officer  in  be- 
half of  the  people  to  compel  him  to  abate  the 
nuisance.  People  v.  Loehfelm,  102  N.  Y.  1,  5 
N.  E.  783;  People  v.  Horton,  64  N.  Y.  610; 
People  V.  Cunningham,  1  Denio,  524;  Attor- 
ney General  v.  Cohoes  Co.,  6  Paige,  133; 
Wood,  Nuis.  §  729;  Will.  Eq.  Jur.  (Potter's 
Ed.)  389,  401.  Whenever  any  person  sustains 
a  special  and  peculiar  loss  in  consequence 
of  an  unlawful  obstruction  to  a  public  street, 
he  may  maintain  an  action  in  equity  in  his 
own  behalf  for  damages  and  an  injunction. 
Such  was  the  case  of  Callanan  v.  Oilman,  su- 
pra, uiwn  which  the  courts  below  relied  in 
rendering  judgment  in  this  action,  and  which 
we  also  regard  as  analogous  and  controlling. 
In  that  case,  as  in  this,  the  obstruction  con- 
sisted in  unloading  trucks  over  a  sidewalk, 
and  pedestrians  were  forced  by  the  inconven- 
ience to  take  the  opposite  side  of  the  street. 
The  proof  of  special  damages  sustained  by 
that  plaintiff  was  slight,  but  the  court  held 
that  direct  proof  of  peculiar  damage  was  not 
needed  if  the  circumstances  showed  it,  and 
that  he  suffered  some  special  damages  not 
common  to  persons  merely  using  the  street 
for  passage  was  declared  to  be  too  obvious  for 
reasonable  dispute.  The  right  to  maintain  the 
action  does  not  depend  on  the  amount  of  the 
special  damage,  provided  the  plaintiff  suffer- 
ed some  material  injury  peculiar  to  himself. 
Pierce  v.  Dart,  7  Cow.  GU9.     We  think  that,  in 


a  populous  city,  whatever  unlawfully  turns  i 
the  tide  of  travel  from  the  sidewalk  directly  j 
in  front  of  a  retail  store  to  the  opposite  side 
of  the  street  is  presumed  to  cause  special  j 
damage  to  the  i)roprietor  of  that  store,  be-  / 
cause  diversion  of  trade  inevitably  follows  di- 
version of  travel.  The  nature  of  this  case 
was  such  that  the  amount  of  damages  could 
not  be  shown,  and  hence  the  remedy  at  law 
would  not  only  be  inadequate,  but  would  lead 
to  a  multiplicity  of  suits.  While  the  defend- 
ant was  doubtless  careful  to  interfere  with 
the  rights  of  the  public  no  more  than  was 
necessary  for  the  convenient  transaction  of 
his  business  with  the  facilities  that  he  had, 
still  he  could  not  lawfully  supply  the  defects 
in  his  premises  by  virtually  monopolizing  the 
sidewalk  for  several  hours  every  day.  As  the 
court  said  in  Rex  v.  Russell,  6  East,  427,  he 
"could  not  legally  cari-y  on  any  part  of  his 
business  in  the  public  street  to  the  annoyance 
of  the  public,"  nor  could  he  "eke  out  the  in- 
convenience of  his  own  premises  by  taking 
in  the  public  highway."  Rex  v.  Jones,  3 
Camp.  230.  Whether  a  particular  use  of  a  - 
street  is  an  unreasonable  use  or  not  is  a  ques-  I 
tion  of  fact  depending  on  all  the  circmnstan-  I 
ces  of  the  case.  Hudson  v.  Caryl,  44  N.  Y. 
553;  St.  John  v.  Mayor,  etc.,  6  Duer,  315; 
Wood,  Nuis.  §  251.  The  trial  court  found  as  a 
fact  that  the  defendant's  use  of  this  sidewalk 
was  an  unreasonable  interference  with  the 
passage  of  the  public  along  the  same.  Hence 
he  was  properly  held  guilty  of  creating  a  nui- 
sance, for  the  habitual  use  of  a  sidewalk  or 
highway  in  an  unreasonable  manner,  to  the 
serious  inconvenience  of  the  public,  is  a  nui- 
sance per^se.  16  Amer.  &  Eng*^  Enc.  Law,  p. 
937.  The  evidence  was  ample  to  support  the 
finding,  as  the  use  of  the  sidewalk  by  the  de- 
fendant was  systematic  and  exclusive  during 
a  substantial  part  of  the  business  day.  The 
primary  pm-pose  of  the  sidewalk  was  violated, 
and  the  people  who  wished  to  use  it  to  walk 
upon  were  compelled  to  walk  around  through 
the  street,  and  avoid  the  passing  vehicles  as 
best  they  could.  This  is  scarcely  denied  by 
the  learned  counsel  for  the  defendant,  who 
contends  that  no  unreasonable  use  or  occupa- 
tion of  the  sidewalk  was  shown  so  far  as  the 
plaintiff'  is  concerned,  and  that  he  cannot  com- 
plain, although  the  public  might.  It  is  true 
that  no  direct  interference  with  the  plaintift"s 
premises  or  business  was  shown.  The  pecun- 
iary loss  to  him  was  caused  by  the  indirect 
effect  of  the  obstructions  to  the  sidewalk  up- 
on the  public;  but  when  an  unreasonable  use 
of  a  pubhc  highway  is  shown,  and  it  also  ag- 
peajis  tliat  such  unreasonable  use  causes  S£e- 
cijil  damages  to  an  individual,  he  has  a  per- 
sonal riglit  of  action  to  compel  the  abatement 
of  the  nuisance.  "Doolittle^v.  Supervisors,  18 
N.  Y.  155;  Corning  v.  Lowerre,  6  Johns.  Ch. 
4.39;  Spencer  v.  Railroad  Co.,  8  Sim.  193; 
Sampson  v.  Smith,  Id.  272;  Crowder  v.  Tink- 
ler, 19  Yes.  617.  While  the  general  welfare  ' 
is  promoted  by  manufactories  such  as  the  de 
leiulant  carries  on,  and  they  sliould  not  be  in 


OBSTRUCTIONS  UST  STREET. 


339 


'terfered  with  for  light  or  trivial  causes,  still 
the  right  of  the  public  to  the  use  of  the  side- 
walk is  paramouut,  and  he  must  so  arrange 
■  his  business  as  not  unreasonably  to  interfere 
\with  it.  Tlie  decree  against  him  conforms 
In  every  respect  to  the  precedent  established 
by  this  court  in  Callauan  v.  Oilman,  107  N. 
Y.  ;'.(J0,  373,  14  N.  E.  264,  when  it  modified 
the  judgments  of  the  courts  below  by  re- 
straining against  an  unnecessary  or  unrea- 
sonable obstruction.  While  the  language  of 
the  injunction  is  somewhat  indefinite,  owing 


to  the  care  taken  not  to  interfere  with  Im- 
portant private  rights,  still  a  reasonable  man 
will  have  little  difficulty  in  determining  what 
is  a  reasonable  use  of  a  public  street.  A  pru- 
dent man  wiU  resolve  doubtful  questions  in 
favor  of  the  public,  and  against  himself,  and 
the  wrong  to  the  public  Is  the  basis  of  the 
plaintiff's  right  to  relief,  although  a  special 
injury  to  himself  was  also  required  before  he 
could  succeed.  We  see  no  reason  for  re- 
versing this  judgment,  which  Is  therefore  af- 
firmed, with  costs.    All  concur. 


340 


MUNICIPAL  LABILITY. 


BOWES  V.  CITY  OF  BOSTON. 

FEGAN  V.  SAME  (three  cases). 

(29  N.  E.  633,  155  Mass.  344.) 

Supreme  Judicial  Court  of  Massachusetts.     Suf- 
folk.    Jan.  8,  1892. 

Exceptions  from  superior  court,  Suffolk 
county;    James  R.  Dunbar,  Judge. 

These  were  actions  of  tort,  tried  together, 
brought  to  recover  damages  from  the  city  of 
Boston  for  injuries  caused  by  the  same  acci- 
dent The  first  was  brought  by  Mrs.  Bowes, 
to  recover  for  injuries  to  her  person;  the 
second,  by  Mr.  Fegan,  for  damages  to  his 
horse,  carriage,  and  harness;  the  third,  by 
Fegan,  administrator,  to  recover  damages  for 
the  pain  and  suffering  endured  by  his  in- 
testate and  mother,  Mrs.  Fegan,  prior  to  her 
death,  which  took  place  some  four  weeks 
after  the  accident;  the  fourth  was  brought 
by  the  administrator  under  section  17,  c.  52, 
Pub.  St.,  to  recover  damages  for  the  death  of 
Mrs.  Fegan.  The  accident  in  question  was 
caused  by  a  horse,  which  Mrs.  Bowes  was 
driving,  overturning  the  carriage  in  which 
she  and  Mrs.  Fegan  were  riding.  Verdict  for 
the  plaintiff  in  each  case.  Defendant  excepts. 
Exceptions  sustained. 

J.  D.  Long,  for  plaintiffs.  R.  W.  Nason 
and  T.  M.  Babson,  for  defendant. 

KNOWLTON,  J.  These  are  four  suits, 
tried  together,  in  all  of  which  the  defendant's 
liability  depends  on  the  same  facts.  Our  dis- 
cussion of  the  first  will  be  equally  applicable 
to  the  others  also. 

The  only  ground  on  which  the  plaintiff 
seeks  to  recover  is  that  the  horse  which  she 
was  driving  shied  at  a  pile  of  stones,  and 
passcfl  to  the  opposite  side  of  the  road,  so 
that  one  of  the  wheels  of  the  buggy  scraped 
against  a  stone  in  another  pile  there,  making 
a  loud  noise,  but  not  diverting  the  carriage 
from  its  course,  or  causing  it  to  tip,  or  in  any 
way  disturbing  its  equilibrium;  that  her 
horse  was  frightened  at  the  noise,  and  started 
up,  and  after  trotting  fast  a  short  distance. 
and  going  between  trotting  and  running, 
broke  into  a  run,  and  in  turning  a  corner 
threw  her  out,  and  caused  the  injury.  The 
notice  given  to  the  defendant  stated  the  de- 
fect and  cause  of  the  injury  to  be  "large 
stones  extending  about  six  feet  into  the  trav- 
eled part  of  said  way,  *  *  *  piled  within 
the  traveled  way  in  such  grotesque  and  un- 
usual shape  that  they  constituted  a  nuisance 
by  their  liability  to  frighten  horses."  An  in- 
jui-y  resulting  from  such  a  cause  is  not  one 
for  which  a  city  or  town  is  liable,  and  the 
jury  were  instructed  at  the  trial  that,  in  or- 
der to  recover,  the  plaintiff  must  satisfy  them 
that  a  collision  with  the  pile  of  stones  was 
the  sole  cause  of  the  accident  The  notice 
gave  the  authorities  of  tbe  city  no  reason  to 
expect  that  the  plaintiff  would  present  at  the 
trial  such  a  case  as  that  on  which  she  finally 


relied.  They  might  well  assume  that  the 
statement  in  the  notice  was  true,  and  that 
the  plaintiff  claimed  damages  on  account  of 
an  accident  caused  by  the  fright  of  her  horse 
at  a  pile  of  stone  of  such  a  grotesque  and  un- 
usual shape  as  to  be  likely  to  frighten  horses. 
The  giving  of  a  proper  notice,  stating  the 
time,  place,  and  cause  of  the  accident,  is  a 
condition  precedent  to  recovering  in  cases  of  j 
this  kind.  Gay  v.  Cambridge,  128  Mass.  387; 
McDougall  v.  City  of  Boston,  134  Mass.  149. 
Under  the  statute  of  1882,  c.  3G,  which  wa& 
repealed  and  re-enacted  by  the  statute  of 
1888,  c.  114,  a  notice  defective  in  either  of 
these  particulars  is  sufficient  if  it  is  shown 
"that  there  was  no  intention  to  mislead,  and 
that  the  party  entitled  to  notice  was  not  in 
fact  misled  thereby."  Under  this  statute  the 
burden  of  proof  is  on  the  plaintiff  to  show 
that  the  defendant  was  not  misled  by  the 
notice,  as  well  as  that  there  was  no  intention 
to  mislead.  This  may  often  be  inferred  from 
the  circumstances,  without  testimony  direct- 
ly to  the  point.  But  in  the  present  case  the 
notice  was  of  a  kind  which  would  have  a  di- 
rect tendency  to  mislead;  and  there  was  no 
evidence  tending  to  show  that  the  authorities 
were  not  misled  by  it,  or  that  they  "ever, 
until  the  time  of  the  trial,  had  a  different  ac- 
count of  the  accident  than  the  one  given  in 
the  notice."  Such  a  notice,  and  such  an  in- 
vestigation as  the  authorities  would  natural- 
ly make  on  account  of  it  would  be  likely  to- 
lead  them  to  rest  their  defense  on  the  legal 
proposition  that  cities  are  not  liable  for  ac- 
cidents caused  by  the  fright  of  horses  from 
objects  of  a  grotesque  or  imusual  appearance 
in  the  street  As  is  said  in  Fortin  v.  East- 
hampton,  142  Mass.  486,  8  N.  E.  328,  a 
misstatement  is  more  likely  to  mislead  than 
no  statement  at  all.  We  are  of  opinion  that 
there  was  no  evidence  on  which  the  jury 
could  find  that  the  notice  was  sufficient  to  en- 
able the  plaintiff  to  recover  for  an  injury 
caused  by  a  collision  with  the  pile  of  stones,, 
and  that  the  ruling  requested  on  this  point 
should  have  been  given. 

In  the  last  two  suits  the  court  was  right  in 
refusing  to  rule  that  the  administrator  could 
not  recover  in  both  actions  if  he  proved  the 
facts  alleged  in  both.  The  right  of  action 
given  by  Pub.  St.  c.  52,  §  17,  is  independent 
of  the  right  of  action  given  by  section  18  of 
the  same  chapter.  The  statute  creating  it 
was  enacted  at  a  different  time,  and  for  an- 
other purpose.  The  right  to  recover  dam- 
ages suffered  in  his  life-time  by  one  who  dies 
from  an  injury  received  on  a  higJiway  sur- 
vives to  his  administrator  for  the  benefit  of 
his  estate,  and  the  damages  are  estimated  on! 
the  theory  of  making  compensation.  Pub.  St. 
c.  165,  §  1.  The  action  by  an  administrator 
under  section  17  on  account  of  his  intestate's 
loss  of  life  is  to  recover  a  sum  not  exceeding 
$1,000  for  the  benefit  of  the  widow  and  chil- 
dren or  of  the  next  of  kin  of  the  deceased,  to 
be  estimated  according  to  the  degree  of  cul- 
pability of  the  defendant     Both  actions,  un- 


OBSTRUCTIONS  IN  STREET. 


341 


der  the  statute,  may  proceed  at  the  same  time 
on  independent  grounds,  and  for  different 
purposes. 

The  defendant  contends  that  the  jury  could 
not  find  that  the  grating  of  the  wheel  upon 
the  stone  was  the  proximate  and  sole  cause 
of  the  accident,  even  if  the  horse  was  fright- 
ened by  it.  There  is  certainly  very  little  to 
show  that  the  sound  was  the  cause  of  the  ac- 
cident. On  the  plaintiff's  theory  the  horse 
was  so  frightened  by  the  first  pile  of  stones 
as  to  pass  out  of  control  of  the  plaintiff  far 
enough  to  bring  the  wheel  in  contact  with  a 
stone  in  the  other  pile  on  the  opposite  side  of 
the  street,  and,  after  the  sound  caihsed  by  the 
contact,  the  evidence  tended  to  show  that  for 
a  considerable  distance  he  was  not  running, 
and  that  he  afterwards  began  to  run.  No 
accident  occurred  until  he  reached  March 
avenue,  428  feet  from  the  pile  of  stones.  This 
avenue  led  to  the  stable  where  he  was  kept, 
and  he  had  an  inclination  to  turn  into  any 
street  leading  directly  to  his  stable  when  he 
came  near  it,  so  that  it  was  difficult  to  re- 
strain him  from  so  doing.  In  turning  into 
March  avenue  the  buggy  was  upset.  But, 
on  the  whole  evidence,  it  was  a  question  of 
fact  for  the  juiy  whether  the  increased  speed 
of  the  horse  was  caused  by  fright  from  the 
sound;  and,  if  they  found  that  it  was,  they 
might  also  find  that  the  sound  was  the  direct 
and  proximate  cause  of  the  accident,  even  if 
there  were  concurring  conditions,  as  distin- 
guished from  active  causes,  without  which 
the  accident  would  not  have  happened.  We 
are  of  opinion  that  there  was  no  error  in 
submitting  this  question  to  the  jury. 

We  now  come  to  the  most  difficult  part  of 
the  case.  The  defendant  contends  that 
fright  from  a  sound  produced  by  the  scraping 
of  a  wheel  against  the  side  of  a  stone  is  not 
different  in  its  legal  character  fi'om  fright  at 
the  sight  of  the  stone.  It  is  well  settled  in 
this  commonwealth  that  cities  and  towns  are 
not  liable  for  injuries  caused  by  the  fright 
of  horses  from  objects  in  the  highway,  even 
if  the  object  is  one  that  would  be  ever  so 
likely  to  frighten  horses.  Can  it  make  any 
difference  whether  the  fright  is  from  sight  or 
sound?  In  general,  and  on  principle,  we 
think  the  answer  should  unhesitatingly  be 
"No."  In  K^ith  v.  Easton,  2  Allen,  552,  it  is 
said  that  "in  no  case  has  it  been  held  that  an 
object  existing  within  the  limits  of  a  higli- 
^.jjy  *  *  *  is  a  defect  in  the  way  merely 
because  it  exposes  the  traveler's  hoi-se  to  be- 
come frightened  by  the  sight  of  it  either  at 
rest  or  in  motion,  or  by  sounds  or  smells  that 
may  issue  from  it."  Fright  from  sound  is 
put  in  the  same  category  with  fright  from 
sight.  See,  also,  Lincoln  v.  City  of  Boston, 
148  Mass.  578,  20  N.  E.  329.  Does  it  make 
a  difference  that  the  sound  is  produced  by 


touching  the  object  in  passing,  without  caus- 
ing the  least  obstruction  to  the  passage  or 
disturbance  of  the  equilibrium  of  the  vehicle? 
It  is  a  part  of  the  adjudication  in  Cook  v. 
Cjt^'  of  Charlestown,  98  Mass.  SO,  tliat  It~can 
make  no  difference  "that  the  object  which 
frightened  the  horse  is  one  that  would  have 
been  an  obstruction  and  defect  in  the  way  if 
it  had  come  in  contact  with  it.  It  is  not  its 
quality  as  an  obstruction  which  causes  the  in- 
juiy  of  the  plaintiff",  but  its  quality  as  an  ob- 
ject of  teiTor  to  horses."  Under  that  deci- 
sion, it  makes  no  difference  in  the  present 
case  that  the  stones  were  so  near  the  center 
of  the  way  tliat,  if  the  plaintiff'  had  driven 
against  them  in  such  a  manner  as  to  be  ob- 
structed in  passing  and  thrown  out,  they 
would  have  been  a  defect.  As  an  obstacle 
over  which  travelers  could  not  pass  in  safety, 
they  were  a  defect;  but  it  was  not  their  qual- 
ity as  an  obstruction  which  caused  the  in- 
jury, but  their  quality  as  an  object  which 
might  frighten  horses  by  sound  if  grazed  by 
a  vehicle  passing  by.  The  contact  was  not 
of  the  kind  in  reference  to  the  possibility  of 
which  the  stones  constituted  a  defect.  Would 
it  make  any  difference  if  the  sound  which 
frightened  the  plaintiff's  horse  had  been  pro- 
duced by  contact  of  a  vehicle  drawn  by  an- 
other horse?  We  think  not  Moreover,  even 
if  cities  and  towns  were  liable  for  injuries 
caused  by  the  fright  of  horses  from  objects 
which  would  be  likely  to  frighten  them  by 
sound,  this  was  not  such  an  object.  No  one 
would  have  said  tliat  the  danger  of  an  acci- 
dent from  fright  of  a  horse  at  a  sound  pro- 
duced by  contact  with  the  stone  was  so  gi-eat 
as  to  make  the  stone  a  defect.  Of  late  it  has 
been  the  policy  of  the  law  not  to  hold  cities 
and  towns  to  so  large  a  liability  as  existed 
under  the  earlier  legislation,  and  we  do  not 
deem  it  wise  to  enlarge  the  class  of  cases  in 
which  there  may  be  recovery  against  them. 
A  road  may  be  very  dangerous  on  account  of 
objects  in  it  which  ai-e  likely  to  frighten 
horses;  and  the  court,  in  deciding  Kingsbui-y 
V.  Dedham,  13  Allen.  ISG,  and  the  other  cases 
above  cited,  might  have  held  the  defendants 
liable,  by  interpreting  the  statute  more  lib- 
erally in  favor  of  the  plaintiffs.  But  we  think 
the  construction  adopted  was  founded  on 
sound  public  policy,  and  that  the  present  case 
falls  within  the  principles  heretofore  laid 
down  by  this  court.  We  are  disinclined  to 
hold  that  contact  with  a  stone,  which  was 
merely  a  touch,  and  which  produced  none  of 
the  effects  in  reference  to  which  stones  would 
be  deemed  a  defect,  but  only  effects  in  ref- 
erence to  the  production  of  which  objects  in  a 
way  are  not  defects,  makes  the  case  any 
stronger  for  the  plaintiff'  than  if  the  same  ef-  / 
feet  had  been  produced  without  contact.  Ex- 
ceptions sustained. 


342 


MUNICIPAL  LIABILITY. 


SCOVILLE  V.  SALT  LAKE  CITY. 
(39  Pac.  4S1,  11  Utah,  60.) 
Supreme  Court  of  Utah.     Feb.  23.  1895. 
Appeal  from  district  court,  Salt  Lake  coun- 
ty;  before  Justice  George  W.  Bartch. 

Action  by  Edward  P.  Scoville  against  Salt 
Lalie  City.  From  a  judgment  for  plaintiff, 
and  an  order  denying  a  new  trial,  defendant 
appeals.     Affirmed. 

E.  D.  Hoge  and  Ed.  F.  Coad,  for  appellant. 
Powers  &  Straup  and  Denton  &  McNally,  for 
respondent 

MERRITT,  0.  J.  This  action  was  brought 
by  respondent  against  the  appellant  to  recov- 
er damages  for  an  injury  sustained  by  his 
child,  a  boy  aged  18  months,  at  the  time  of 
the  accident,  near  the  Western  Union  Tele- 
graph Office,  in  Salt  Lake  City,  on  the  east 
side  of  Main  street.  Ice  had  been  allowed  to 
accumulate  on  the  sidewalk,  caused  by  the 
freezing  of  water  which  came  down  a  con- 
ductor and  a  waste  pipe  leading  from  a  sink. 
and  was  allowed  to  flow  out  and  over  the 
sidewalk.  The  conductor  had  been  there  a 
long  time,  and  the  water  flowing  from  thence 
would  freeze  and  thaw  as  the  weather  was 
cold  or  warm.  The  conductor  was  about  foiu* 
inches  in  diameter,  made  of  tin,  and  was 
used  to  carry  off  the  rain  or  snow  as  it  melt- 
ed from  the  roof  of  the  building  adjoining 
the  walk.  The  sidewalk  at  tbis  place  was 
also  sloping  or  slanting  to  the  south,  and 
also  towards  the  curb,  making  it  all  the  more 
dangerous  and  slippery  when  the  water  froze. 
At  the  time  of  the  accident,  the  ice  covered 
a  space  of  two  or  three  feet  wide  across  the 
sidewalk  diagonally  towards  the  curb,  and 
was  from  one  to  fifteen  inches  thick,  measur- 
ing from  the  curb  up  to  the  mouth  of  the 
conductor.  At  the  time  of  the  accident,  a 
slight  snow  was  and  had  been  falling  for 
several  hours,  which  in  a  large  measure  cov- 
ered and  obscured  the  ice.  On  the  7th  day 
of  January,  1892,  in  the  afternoon,  about  5 
o'clock,  respondent's  wife  was  walking  along 
the  sidewalk  at  a  usual  gait,  carrying  the 
child  in  her  arms,  and,  when  she  reached 
this  place  covered  with  ice,  slipped  and  fell 
as  she  walked  upon  it.  In  falling,  the  child 
was  thrown  with  considerable  force  to  the 
walk,  striking  with  its  back  on  the  sidewalk, 
from  which  the  child  received  an  inguinal 
rupture. 

At  the  conclusion  of  the  testimony  for  the 
respondent,  appellant  moved  the  court  for  a 
nonsuit,  and  the  motion  was  denied,  and  ap- 
pellant rested  the  case  without  introducing 
or  offering  any  evidence.  After  argument 
by  counsel,  the  court  charged  the  jury,  and 
they  retired  to  consider  of  their  verdict 
I^ater  they  retiu-ned  into  court  for  further  in- 
struction, and  the  court,  in  open  court  and  in 
the  presence  of  counsel  for  the  respective  par- 
ties, further  charged  the  jiu-y.  The  whole 
charge,  as  given  in  open  court  was,  at  the 
request  of   the  jury,   sent   to    their   room   in 


writing.  The  jury  rendered  a  verdict  in  fa- 
vor of  the  respondent  Appellant's  motion 
for  a  new  ti-ial  was  denied,  and  this  appeal 
is  prosecuted  from  the  order  refusing  a  new 
trial,  and  from  the  judgment 

The  errors  assigned  and  relied  on  are:  First. 
The  evidence  was  insufficient  to  sustain  the 
verdict  or  any  verdict  for  respondent,  and 
appellant's  motion  for  a  nonsuit  should  have 
been  granted.  Second.  The  com't  erred  in 
refusing  to  give  the  requests  of  appellant 
Third.  The  court  erred  in  permitting  its  writ- 
ten charges  to  be  sent  to  the  jury. 

That  the  ice  in  question  was  not  the  result 
of  snow  or  rain  falling  or  dripping  from  eaves, 
and  not  from  any  natural  cause,  but  was 
caused  from  water  discharged  on  the  side- 
walk l)y  means  of  a  conductor  used  to  car- 
ry water  from  the  roof  of  the  building,  and, 
too,  by  a  defective  one,  and  from  a  waste 
pipe,  is  clear  from  the  evidence.  The  ice 
was  the  result  of  an  artificial,  and  not  a  nat- 
ural, cause.  Tliere  is  no  evidence  at  all  to 
sustain  appellant's  contention  that  the  ice 
was  the  result  of  the  prevailing  weather,  and 
not  one  witness  in  the  case  so  testified. 
Where  a  corporation  permits  the  discharge 
of  water  from  adjoining  houses  to  be  ob- 
structed, or  permits  the  water  to  be  dischar- 
ged on  its  walk  by  some  artificial  means,  and 
there  allowed  to  freeze,  in  such  case  its  own 
act  of  wrongdoing  contributes  to  the  ac- 
cumulation of  the  dangerous  ice,  and  the  cor- 
poration will  be  held  liable.  Here  the  ice  is 
the  result  of  an  artificial,  not  of  a  natural, 
cause.  Where  a  municipal  corporation  has 
permitted  ice  and  snow  to  accumulate  and 
remain  upon  sidewalks  of  a  large  city  in  the 
business  part  thereof  for  an  unreasonable 
time,  in  a  rounded,  uneven,  and  dangerous 
condition,  and  an  injury  occurs  by  reason 
thereof  to  one  who  is  properly  using  the  walk, 
the  municipality  is  liable.  Elliott,  Roads  & 
S.  p.  459;  Collins  v.  Council  Bluffs,  32  Iowa, 
324;  McLaughlin  v.  City  of  Corry,  77  Pa. 
St  109;  Luther  v.  Worcester,  97  Mass.  2G8; 
Morse  v.  Boston,  109  Mass.  446.  In  this  case 
the  evidence  shows  that  there  was  ice  at  the 
point  mentioned  on  the  sidewalk  all  winter, 
and  this  ice  was  there  accumulating  from  De- 
cember to  January  7th,  the  time  of  the  in- 
jury. 

The  question  of  notice  to  appellant  was  one 
of  fact  for  the  jury  to  determine,  and  not  a 
question  for  the  court.  Elliott,  Roads  &  S, 
p.  461;  Dill.  Mun.  Coi-p.  §  1026.  In  Wis- 
consin, where  a  defect  in  a  sidewalk  existed 
one  day,  and  in  Massachusetts,  where  a  de- 
fect in  a  highway  existed  13  hours,  and  in 
("onnecticut,  a  few  hours  from  frozen  water, 
't  was  held  that  it  was  for  the  jury  to  de- 
termine whether  that  constituted  sufficient 
notice.  Howe  v.  City  of  Lowell,  101  Mass. 
99;  Sheel  v.  City  of  Appleton,  49  Wis.  125, 
5  N.  W.  27;  Gaylord  v.  City  of  New  Britain. 
58  Conn.  398,  20  Atl.  365.  This  defect  and  I 
accumulation  of  ice  was  on  the  most-traveled  | 
walk  in  tlie  city.    The  question  of  notice  is  not 


ICE  AND  SNOW. 


3i3 


alone  determined  from  the  length  of  time  a  de- 
fect has  existed,  but  also  from  tlie  nature  aud 
character  of  the  defect,  the  extent  of  the  trav- 
el, aud  whether  it  is  in  a  populous  or  sparsely- 
settled  part  of  the  city.  Besides,  there  is,  in 
this  case,  evidence  tending  to  show  actual  no- 
tice to  the  city.  The  question  as  to  whether 
the  acts  and  conduct  of  appellant,  and  the 
facts,  as  shown  by  the  evidence,  constitute 
negligence  was  one  for  the  jury  to  pass  upon. 
Bowers  v.  Railroad  Co.,  4  Utah,  215,  7  Pac. 
251.  The  court,  therefore,  did  not  err  in  sub- 
mitting the  ca;5e  to  the  jury. 

The  chai'ge  of  the  court  coiTeetiy  stated  the 
law  in  the  premises,  and  all  the  requests  of 
appellant  were  substantially  given  in  the 
charge  of  the  court  Appellant,  however,  is 
not  in  a  position  to  avail  itself  of  any  error 
in  the  charge  of  the  court,  should  there  be 
any,  for  it  has  not  properly  made  and  saved 
its  exceptions.  The  only  exceptions  taken  by 
appellant  are:  "In  this  case  we  desire  to 
have  an  exception  to  each  paragraph  of  the 
charge  of  the  i.-ourt;  also  save  our  exceptions 
to  the  refusal  of  the  court  to  give  the  instruc- 
tions asked  for  by  the  defendant."  This 
court  has  held  that  such  exceptions  are  too 
general,  both  for  an  exception  to  the  charge 
as  given  and  for  the  requests  refused.  Marks 
T.  Tompkins,  7  Utah,  421,  27  Pac.  6.  General 
exceptions  to  all  the  instructions  are  of  no 
effect,  and  will  not  be  considered  if  any  por- 
tion of  the  charge  is  correct.  Exceptions 
must  be  specific  to  the  particular  instruc- 
tions. Nelson  v.  Brixen,  7  Utah,  454,  27 
Pac.  578;  Cooper  v.  Schlesinger,  111  U.  S. 
148,  4  Sup.  Ct.  3G0;  Railway  Co.  v,  Jurey, 
111  U.  S.  584,  4  Sup.  Ct.  5GG.  An  exception 
to  each  and  every  part  of  the  charge  is  too 
general.  It  has  been  too  frequently  decided 
in  this  court  to  require  authorities  to  sustain 
the  proposition  that  where  the  charge  gives 
the  substance  of  the  requests  for  instructions, 
or  where  the  charge  as  a  whole  covers  the 
questions  embraced  in  the  requests,  it  is  not 
error  to  refuse  the  requests,  even  though  tech- 
nically good  in  law.     In  such  case  the  court 


is  not  bound  to  use  the  language  of  counsel, 
but  may  use  its  own.  This  has  uniformly 
been  the  practice  in  this  territory,  and  is 
sustained  by  the  supreme  court  of  the  Unit- 
ed States.  People  v.  Chadwick,  7  Utah,  141, 
142,  25  Pac.  737;  Cunningham  v.  Railway 
Co.,  4  Utah,  20G,  7  Pac.  795;  People  v.  Olsen, 
4  Utah,  413,  11  Pac.  577;  People  v.  Hamp- 
ton, 4  Utah,  258,  9  Pac.  508;  Clampitt  v. 
Kerr,  1  Utah,  247;  Railroad  Co.  v.  Horst, 
93  U.  S.  291;   Laber  v.  Cooper,  7  Wall.  5G5. 

The  court  did  not  err  in  permitting  the 
jury  to  take  to  their  room  the  charge  of  the 
court  after  it  was  reduced  to  wriiiug.  All 
the  charge  was  given  in  open  court,  and  in 
presence  of  counsel  for  both  parties.  That  it 
is  proper  to  allow  written  instructions  to  go 
to  the  jury  room,  see  People  v.  Cummings,  57 
Cal.  88.  In  the  absence  of  contrary  statutory 
direction  on  the  subject,  the  instructions  giv- 
en by  the  court  to  the  jury  in  writing  may, 
in  the  discretion  of  the  court,  be  taken  with 
them  to  their  room  when  they  retire  to  de- 
liberate. 

Differences  of  climate  and  locality  are  to  be 
considered  in  determining  the  liability  of  mu- 
nicipalities for  their  failure  to  exercise  care 
in  removing  ice  and  snow  from  their  walks. 
Each  case  must  be  considered  with  reference 
to  the  climate  of  the  place.  In  Minnesota, 
where  snow  and  ice  exist  almost  constantly 
through  the  winter  season,  to  require  mu- 
nicipalities to  keep  their  walks  absolutely  free 
of  ice  and  snow  would  be  highly  unreasona- 
ble. But  in  other  localities  and  in  a  warmer  i 
climate,  like  Utah,  where  snow  and  ice,  al- 
though not  unusual,  are  by  no  means  con- 
tinuous, to  require  the  municipalities  to  keep 
their  walks  free  of  ice  and  snow,  especially 
in  particular  localities,  is  by  no  means  un-j 
reasonable.     .Jones,  Neg.  Mun.  Corp.  §  100. 

Upon  a  full  examination  of  the  case  and  au- 
thorities cited,  we  are  of  the  opinion  that 
the  judgment  should  be  affirmed;  and  it  is 
so  ordered. 

SMITH  and  KING,  JJ.,  concur. 


?44 


MUNICIPAL  LIABILITY. 


KANNENBERG  v.   CITY  OF  ALPENA. 

(55  N.  W.  614,  96  Mich.  53.) 
Supreme  Court  of  Michigan.     June  16,  1893. 

Error  to  circmt  court,  Alpena  county; 
Robert  J.  Kelley,  Judge. 

Action  by  Herman  Kannenberg  against 
the  city  of  Alpena  for  personal  injuries 
caused  by  slipping  down  on  the  ice  on  a 
highway.  From  a  judgment  for  defendant, 
entered  upon  a  verdict  directed  by  the  court, 
plaintiff  brings  error.    Affirmed. 

W.  E.  Depew,  for  appellant  J.  D.  Turn- 
buU,  for  appellee. 

HOOKER,  C.  J.  Plaintiff  brought  an  ac- 
tion against  defendant  to  recover  damages 
for  a  personal  injm-y,  occasioned  by  slipping 
down  upon  the  ice  on  a  highway.  It  is  con- 
tended by  defendant's  counsel  that  the  evi- 
dence conclusively  shows  that  the  plaintiff 
was  not  upon  the  sidewalk  when  he  slipped. 
No  witness  swears  clearly  that  he  slipped 
upon  the  sidewalk,  but  the  plaintiff  stated 
once  in  his  testimony  that  he  was  on  the 
sidewalk  when  he  fell.  We  shall  therefore 
treat  the  question  as  one  for  the  jury.  The 
trial  judge  directed  a  verdict  for  defendant 
upon  the  ground  that  there  was  no  evidence 
that  the  street  was  not  in  a  reasonably  safe 
condition  for  travel.  The  street  had  been 
recently  paved,  in  the  course  of  which  the 
i  center  of  the  highway  was  made  higher  than 
the  existing  sidewalks.  It  had  previously 
been  somewhat  lower.  The  street  was  paved 
with  cedar  blocks,   so  laid   as  to   make   a 


gutter  outside  of  the  sidewalk.    In  this  gat-  > 
ter  was  a  catch-basin  for  the  sewer,  close  to  ! 
the  place  of  the  accident.    This  catch-basin 
had   become   filled   up   or   stopped,   so   that 
the  water  did  not  run  off,  and,  the  weather 
being  warm,  the  water  accumulated  at  that 
point,   and  flowed   upon   the  outer  edge   of 
the  sidewalk,   where  it  froze,  and,  it  being  ■ 
covered  with  manure  and  dirt,  plaintiff  feU,   / 
and  was  injured. 

It  is  claimed  that  defendant  did  i.      keep  ; 
its  walk  in  a  reasonably  safe  condition  for  j 
travel.    Unless  the  municipalities  of  the  state 
are  to  be  made  insurers  against  accident,  it  ' 
is  difficult  to  see  how  the  plaintiff  can  be 
permitted   to   recover.    Just  what   duty   the 
city  neglected  is  not  stated.    By  the  paving 
improvement,    the    water   flowed    upon    the  . 
sidewalk  and  froze.    Had  it  not  been  made,  '\ 
It  would  have  flowed  upon  the  road,  where  \ 
It    would    have    frozen,    and    made    it    possi- 
ble for  an  accident  to  have  happened  there. 
No  fault  is  found  with  the  constiniction  of  the  , 
catch-basin,  and   upon  the   whole   record  it   j 
is  plain  that  from  natural  causes,   without 
fault  upon  the  part  of  the  city  authorities,    ' 
some  ice  formed  from  the  snow  which  feU, 
in  the  highway.    No  hability  attaches  under  | 
such  chcumstances.    Some  cases  have  been  | 
cited  in  support  of  the  plaintiff's  claim,  but 
they   relate  to  instances  where,  by  neglect 
of  the  hydrants  or  waterspouts,  water  was  j 
permitted  to  drop  upon  the  walk,  where  it    « 
froze.    These   cases   are   clearly   distinguish-  / 
able   from   the   case   before   \is.    The   judg- 
ment must  be  affirmed.    The  other  justices 
concurred. 


ICE  AND  SNOW. 


345 


HAZZARD  T.  CITY  OP  COUNCIL  BLUFFS. 

(53  N.  W.  1083,  87  Iowa,  51.) 

Supreme  Court  of  Iowa.     Jan.  18,  1893. 

Appeal  from  district  court,  Pottawattamie 
couuty;   A.  B.  Thoruell,  Judge. 

Action  to  recover  damages  for  injuries  to 
tlie  plaintiff's  horse,  by  I'eason  of  the  alleged 
negligence  of  the  defendant  in  constructing 
an  insufficient  culvert  in  a  street  of  the  city, 
which  caused  tlie  street  to  overflow  and  be- 
come obstructed  with  mud,  rubbish,  stones, 
bricks,  and  other  refuse  matter.  There  was 
a  trial  by  jury,  which  resulted  in  a  verdict 
and  judgment  for  the  plaintiff.  Defendant 
appeals. 

J.  J.  Stewart,  for  appellant.  Flicliinger 
Bros.,  for  appellee. 

ROTIIKUCK,  J.      The  argument  of  coun- 
sel for  appellant  proceeds  upon  the  theory 
that  the  evidence  does  not  show  that   the 
city  was  negligent  in  the  construction  of  the 
culvert,  and  in  permitting  brickbats,  brush, 
and  other  rubbish  to  remain  in  the  street. 
/  It  cannot  be  a  subject  of  debate  that  the  cul- 
[  vert  was  insufficient  to  carry  off  the  water 
which  came  down  from  the  adjacent  land. 
I  The  fact  is  undisputed  that  the  culvert  be- 
!  came  clogged  up,  and  that  the  water  washed 
.  over  the  street,  and  deposited  brickbats  and 
/  other  rubbish  upon  the  surface  of  the  street; 
and  there  is  evidence  in  the  case  from  which 
[  the  jury  were  authorized  to  find  that  there 
was  a  ditch  or  depression  in  the  street,  caus- 
ed by  the  action  of  the  water  which  should 
I  have  been  carried  off  through  the  culvert; 
and  there  was  also  evidence  to  the  effect  that 
much  of  this  rubbish  which  obstructed  the 
I  street  had  been  there  for  sufficient  time  to 
I  authorize  a  finding  that  it  must  have  come 
to  the  knowledge  of  the  officers  of  the  city 
I  who  were  charged  with  the  duty  of  keeping 
I  the  streets  in  repair,  and  in  suitable  condi- 
tion  for  travel.     This  being  the  state  of  the 
I  case,  there  can  be  no  doubt  that  the  city  was 
liable    for   the    injury,    unless   the   plaintiff 
failed  to  show  that  the  person  in  charge  of 
the  horse  was  free  from  contributory  negli- 
;  gence  in  riding  the  horse  on  and  over  the 
obstructions   in    the   street.      The   evidence 
,  shows  that  the  plaintiff's  horse  was  injured 
'  by  stepping  on  a  brickbat  which  rolled  under 
his  foot,  and  by  reason  of  the  rolling  mo- 
I  tion  of  the  brick  the  leg  of  the  horse  was 
broken.     It  is  claimed  that  the  brickbats  in 
the  street  were  plainly  visible,  and  that  the 
rider  of  the  horse  should  have  avoided  them. 
The  jury  found  specially  that  a  part  of  the 
obstructions  and  defects  in  the  street  were 
in  plain  view^  of  tlie  person  in  charge  of  the 
horse.      This  finding  was  warranted  by  the 
'  evidence.     The  brickbats,  or  most  of  them, 
were  shown  to  be  in  plain  view;    but  there 
\  was   evidence   tending   to   show   that   there 
was  a  ditch  and  brush  and  other  rubbish  un- 
der the  brickbats,  which  the  jury,  no  doubt, 
believed  were  the  real  cause  of  the  rolling  of 


brickbat  upon  which  the  horse  stepped  | 
was  injured.     A  careful  examination  of 


the  bri 
and 

the  evidence  leads  us  to  the  conclusion  that  ) 
the  jury  were  warranted  in  finding  that  the  / 
person  in  charge  of  the  horse  was  shown  to/ 
be  free  from  contributory  negligence.    These' 
general   observations  practically  dispose  of  / 
this  appeal.     The  case  has  once  before  been 
in  this  court,  upon  an  appeal  by  the  plain- 
tiff.     See  79  Iowa,  lOG,  44  N.  W.  219.      At 
the  last  trial  the  court  appears  to  have  tried 
the  case  in  accord  with  the  opinion  on  the 
former  appeal. 

Appellant's  counsel  complain  of  the  refusal 
to  give  certain  instructions  to  the  jury,  upon 
the  request  of  the  defendant.  The  instruc- 
tions which  were  given  by  the  court  on  its 
own  motion  covered  every  conceivable  ques- 
tion in  the  case,  and  there  was  no  necessity 
for  further  instruction.  It  is  claimed  that 
certain  parts  of  the  charge  to  the  jury  were 
erroneous.  We  discover  no  ground  for  dis- 
turbing the  judgment  on  this  ground.  The 
charge,  taken  as  a  whole,  is  a  correct  expo- 
sition of  the  law  of  negligence,  as  applied  to 
the  facts  disclosed  in  evidence. 

Special  objection  is  made  to  the  following 
language,  used  by  the  court  in  the  instruc- 
tions: "But  actual  notice  need  not  be  shown 
in  all  cases.  It  may  be  inferred  from  the 
notoriety  of  the  defect,  or  from  its  being  so 
visible  and  apparent,  and  having  continued 
for  such  length  of  time,  as  that,  in  the  exer- 
cise of  reasonable  observation  and  care,  the 
proper  officers  of  the  city  ought  to  have 
known  of  and  remedied  or  removed  the  de- 
fect or  obstruction.  The  evidence  in  this 
case  fails  to  show  actual  notice  of  the  de- 
fect or  obstruction  complained  of,  if  same 
existed,  to  the  defendant  or  its  officers;  but 
if  the  evidence  show's  that  such  defect  or  ob-  \ 
struction  had  existed  for  such  length  of  time, 
and  was  so  visible  and  apparent,  as  that  the  | 
officers  and  servants  of  the  defendant  ought, 
in  the  exercise  of  ordinary  care  and  observa-  \ 
tion,  to  have  known  of  and  remedied  or  re- 
moved same  before  the  time  of  the  accident  \ 
in  question,  this  w^ould  be  sufficient  to  show 
that  the  defendant  was  negligent  in  permit-  \ 
ting  such  defects  or  obstructions  to  remain 
at  the  time  of  the  accident;  but  unless  the  I 
evidence  does  show  that  said  defects  or  ob- 
structions w'ere  caused  by  the  negligence  of 
the  defendant  in  constructing  the  culvert  at 
the  place  in  question,  as  before  explained, 
or  that  same  were  of  such  notoriety,  or  had 
existed  for  such  length  of  time,  and  were  vis- 
ible and  apparent  before  the  accident,  as 
that  the  officers  and  servants  of  the  defend- 
ant, in  the  exercise  of  ordinary  care  and  ob- 
servation, ought  to  have  know-n  of  and  reme- 
died or  removed  said  defects  or  obstructions, 
the  defendant  cannot  be  charged  with  negli- 
gence on  account  thereof,  and  the  plaintiff 
cannot  recover  in  this  case."  The  objection  > 
to  this  part  of  the  charge  is  that  the  defend- 
ant is  thereby  made  liable  if  a  mere  servant 
of  the  corporation  knew  of  the  defect,  or 


346 


MUNICIPAL  LIABILITY. 


could,  with  reasonable  diligence,  have  discov- 
ered it  The  part  of  the  charge  above  set 
out,  when  considered  throughout,  will  not 
bear  the  construction  contended  for.  Its 
whole  scope  and  meaning  is  that  if  the 
"proper  officers  of  the  city  ought  to  have 
Ijnown  of  and  remedied  or  removed  the  de- 
fect or  obstruction,"  and  did  not  do  so,  then 
the  city  was  chargeable  with  negligence. 
The  use  of  the  word  "servants"  could  not 
have  been  understood  by  the  jury  as  other 


than  representatives  of  the  city  charged  with, 
some  duty  with  reference  to  maintaining 
the  streets  in  proper  condition  for  travel. 
The  case  requires  no  further  consideration. 
We  have  disposed  of  it  in  this  general  way 
because,  as  it  appears  to  us,  there  is  no  real 
ground  for  objection  to  any  ruling  of  the 
court,  and  we  are  satisfied  that  the  verdict  of 
the  jury  finds  support  in  the  evidence. 

The  judgment  of  the  district  court  is  af- 
firmed. 


UNLIGHTED  CONDITION  OF  STREETS. 


347 


DAVENPORT  v.   CITY  OF  HANNIBAL. 
(18  S.  W.  1122,  108  Mo.  471.) 

Supreme  Court  of  Missouri,  Division  No.  2. 
March  2,  1892, 

Appeal  from  circuit  court,  Mouroe  county; 
Thomas  H.  Bacou,  Judge. 

Action  by  David  G.  Davenport  against  the 
city  of  Hannibal  to  recover  damages  sustained 
by  reason  of  a  personal  injury  to  his  wife, 
Fanny  C.  Davenport,  caused  by  the  defective 
condition  of  defendant's  street.  From  a  judg- 
ment for  plaintiff,  defendant  appeals.  Affirm- 
ed. 

D.  H.  Eby,  for  appellant.  A.  M.  Alexander 
and  R.  E.  Anderson  (Harrison  &  Mahan,  of 
counsel),  for  respondent. 

MACFARLANE,  J,  This  is  an  action  by 
plaintiff,  husband  of  Fanny  C.  Davenport,  to 
recover  damages  from  defendant  for  loss  of 
the  services  of  his  wife,  and  expenses  of  nurs- 
ing and  treating  her  on  account  of  personal 
injuries  resulting  from  the  alleged  negligence 
of  the  defendant  in  not  keeping  its  streets  in 
proper  condition.  The  charge  in  the  petition 
is  that  defendant  maintained  a  sidewalk  on 
the  west  side  of  Fourth  street  in  said  city,  and 
where  that  street  intersected  Washington 
sti-eet  it  had  undertaken  to  maintain  a  cross- 
ing over  Washington  street.  That  on  the 
margin  of  Washington  street,  between  the  end 
of  the  sidewalk  and  the  beginning  of  the  cross- 
ing, a  space  had  been  left  open  for  the  pas- 
sage of  the  surface  water,  and  as  a  crossing  of 
this  water-way  large  stepping-stones  had  been 
planted.  That  the  crossing  of  this  water-way 
was  negligently  pemiittei  to  become  "greatly 
out  of  repair,  so  that  between  the  southern 
terminus  of  said  crossing  on  Wa.shington 
street,  as  the  same  was  laid  on  the  surface 
thereof,  and  the  nearest  stepping  stone  in  said 
water-way,  there  was  an  opening  about  26 
inches  in  width  and  20  inches  deep,  with  the 
sides  thereof  precipitous,  with  no  apron  or 
covering  over  the  same,  without  protection,* 
and  without  any  light  or  signal  to  indicate 
danger;  so  that  the  same  was  on,  and  had 
been  for  a  long  time  prior  to,  said  10th  day  of 
November,  1885,  not  reasonably  safe  for  or- 
dlnai'y  travel,  of  which  said  condition  of  said 
crossing  defendant  had  notice."  The  petition 
further  charged  that  on  the  10th  of  November, 
1885,  the  wife  of  plaintiff  came  to  the  city  of 
Hannibal  for  the  purpose  of  visiting  her  mar- 
ried daughter,  then  living  on  the  westerly  side 
of  said  Fourth  street,  and  south  of  said  Wash- 
ington street.  That  after  dark  on  the  evening 
of  said  10th  day  of  November,  1885,  slie,  on 
her  way  to  her  said  daughter's,  started  to  cross 
said  Washington  street  at  the  crossing  afore- 
said, going  south,  and  was  wholly  unaware  of 
the  said  condition  of  said  crossing,  presuming 
that  the  same  was  on  a  continuous  level, 
there  being  no  light  or  signal  to  indicate  dan- 
ger, when  she  unexpectedly  stepped  down 
and  into  said  opening,  and  was  violently 
thrown  to  the  ground,  from  which  she  receiv- 


ed serious  injuries,  making  necessary  the  am- 
putation of  one  of  her  legs,  after  long  suffer- 
ing and  disability.  "That  by  means  of  the 
premises  the  said  Fanny  C.  Davenpoi-t,  for  a 
long  space  of  time,  to-wit,  ever  since  the  receiv- 
ing of  said  injuries,  has  been  unable  to  per- 
form her  ordinary  duties  as  the  wife  of  said 
plaintiff.  That  plaintiff  has  been  deprived 
not  onlj'  of  her  services  and  society,  but  was 
put  to  great  expense,  and  did  pay  out  a  large 
sum,  to-wit,  the  smu  of  six  hundred  dollars,  in 
and  about  the  nursing  and  taking  care  of  his 
said  wife,  and  for  medical  attendance  on  her, 
and  has  suffered  great  distress  of  body  and 
mind,  besides  being  hindered  and  damaged  in 
his  business  on  accoimt  of  the  precarious  con- 
dition of  his  said  wife,  produced  by  said  in- 
juries." The  answer  was  a  general  denial 
and  a  special  plea  of  a  former  trial  of  the  is- 
sues as  to  the  liability  of  the  city  for  injuries 
to  Mrs.  Davenport  in  a  suit  by  her  against  the 
defendant,  in  which  a  judgment  was  rendered 
for  defendant.  No  point  is  made  in  this  an- 
swer, and  no  further  consideration  will  be 
given  to  it.  No  question  is  made  as  to  the 
sufficiency  of  the  evidence  to  support  the  ver- 
dict. We  have  read  the  evidence  carefully, 
and  thinlc  it  tends  to  prove  each  issue  tendered 
by  the  petition,  and  we  will  not  state  the  evi- 
dence in  detail.  1 

4:  *  *  «  *  « 

2.  Complaint  is  made  that  the  court  refused 
to  give  instruction  4,  asked  by  defendant. 
That  instruction,  in  effect,  told  the  jury  that, 
if  the  damage  to  plaintiff's  wife  was  caused  by 
a  failure  on  the  part  of  defendant  to  maintain 
a  proper  light  in  the  vicinity  of  the  point  at 
which  the  defect  was  permitted  to  exist,  and 
that  defendant  had  previously  kept  and  main- 
tained such  light,  then,  unless  defendant  had 
actual  notice  of  the  absence  of  such  light  at 
the  time  plaintiff's  wife  fell,  "in  time  to  have 
enabled  it,  in  the  exercise  of  reasonable  dili- 
gence and  attention,  to  have  supplied  the 
same  before  the  said  Mrs.  Daveniwrt  fell,  or 
that  on  the  evening  in  question  the  absence, 
if  any,  of  such  light  had  existed  for  such  a  pe- 
riod of  time  as  to  impart  such  notice  to  de- 
fendant, the  jury  will  find  for  the  defendant." 
We  do  not  think  the  principle  that  a  city  is  en- 
titled to  notice  of  a  defect  in  a  street,  and  a 
reasonable  time  in  which  to  make  repairs,  be- 
fore it  can  be  held  for  damages  resulting  from 
such  defect,  applies  to  an  omission  of  duty  of 
the  character  here  shown.  The  negligence  in 
failing  to  maintain  a  light  consisted  in  a  fail- 
ure to  discharge  a  known  duty,  and  not  in  a 
failure  to  know  that  a  duty  was  required.  De- 
fendant knew  that  when  the  darkness  came  , 
the  light  was  needed.  The  neglect  of  de- 
fendant's agent  to  light  the  lamp  was  the  neg- 
lect of  defendant  itself.  The  city  was  not 
entitled  to  notice  that  its  agent  had  neglected 
his  duty.     Russell  v.  Columbia,  74  Mo.  480. 

3.  It  is  insisted  that  the  court,  by  its  instruc- 
tion, given  on  its  own  motion,  submitted  to- 

1  Part  of  the  opiuiou  is  omitted. 


348 


MUNICIPAL  LLIBILITY. 


the  jiiry  the  question  of  law  as  to  whether  the 
plaintiff  had  a  cause  of  action.  This  is  the 
instruction  complained  of:  "The  court,  of  its 
own  motion,  on  plaintiffs  behalf,  instructs  the 
jury  tliat,  although  aggravation  of  Fanny  C. 
Davenport's  alleged  injuries,  if  any,  by  the 
negligence,  if  any,  of  said  Fanny  C.  Daven- 
port or  of  her  professional  attendants,  cannot 
be  allowed  to  increa.se  the  estimate  of  plain- 
tiff's damages,  if  any,  yet,  if  the  jury  find  that 
at  the  time  the  alleged  accident  occurred  the 
plaintiff,  under  the  instructions  herein,  be- 
came vested  with  a  caiise  of  action  against 
defendant  therefor,  no  such  subsequent  ag- 
gravation, if  anj-,  of  her  said  injuries  can  take 
away  plaintiff's  cause  of  action,  or  authorize 
a  verdict  against  plaintiff."  The  other  instruc- 
tions given  by  the  court  fairly  and  fully  set 
out  the  facts  which  it  was  necessary  should 
have  existed  in  order  to  make  a  cause  of  ac- 
tion in  favor  of  plaintiff's  wife.  Now,  if  for 
the  court  to  say  that,  under  the  instructions 
given,  Mrs.  Davenport  "became  vested  with  a 
cause  of  action"  at  the  time  of  her  injury,  is 
not  a  submission  to  the  jury  of  the  legal  ques- 
tion whether  she  had  a  cause  of  action,  the 
juiy,  by  the  other  instractions,  ai'e  clearly  told 
what  facts  would  constitute  a  cause  of  action; 
and  by  this  instruction  they  are  told  that,  if 
such  cause  of  action  accrued  in  the  first  place, 
it  was  not  defeated  by  any  subsequent  negli- 
gence of  plaintiff's  wife  or  of  her  professional 
attendants. 

4.  Objection  is  made  to  the  first  instruction 
given  for  plaintiff,  the  part  objected  to  being 
as  follows:  "If  the  jury  find  from  the  evidence 
that  said  crossing  was  not  so  reasonably  safe 
for  ordinary  travel  as  aforesaid,  at  the  time  of 
the  alleged  injury,  to-wit,  on  the  night  of  the 
10th  day  of  November,  1885,  by  reason  of  an 
opening  between  the  stones  in  said  crossing 
erected  for  and  used  as  stepping-stones  there- 
in; and  further  find  that  the  defendant  had  no- 
tice of  such  defect  in  such  crossing,  or  that 
the  same  had  existed  for  a  time  prior  to  the 
time  of  said  alleged  injury,  reasonably  suffi- 
cient to  have  enabled  the  defendant  to  have 
ascertained  the  fact,  and  remedied  said  defect, 
and  further  find  that  on  the  night  of  said  day 
last  aforesaid  the  said  plaintiff's  wife,  Fanny 


C.  Davenport,  while  walking  over  said  crossing, 
and  while  in  the  exercise  of  ordinary  care  and 
attention,  fell  into  said  opening,  and  was 
thereby  injm-ed,  and  that  her  said  fall  and  in- 
jui-y  was  caused  by  said  alleged  defect  in  said 
crossing,  then  they  must  find  for  said  plain- 
tiff'." The  objection  to  this  instniction  is  that, 
while  it  purports  to  cover  the  whole  case,  it  is 
so  framed  as  to  exclude  from  the  consideration 
of  the  jury  the  fact  as  to  whether  a  street 
lamp  was  maintained  in  the  vicinity  of  the  ac- 
cident at  the  time  of  its  occurrence.  We  do 
not  think  the  instruction  open  to  the  criticism. 
The  proximate  cause  of  the  injury  was  the  de- 
fective sti'eet,  and  not  the  absence  of  a  light. 
Maintaining  a  light  75  feet  away,  as  had  been 
done,  would  not  have  excused  defendant  for  j 
suffering  the  defect  in  the  sti'eet  to  exist.  | 
If  a  proper  light  had  been  there,  it  might  have 
warned  Mrs.  Davenport  of  the  danger,  and 
she  might  have  avoided  it.  The  presence  or 
absence  of  a  light  only  bore  on  the  question  of 
the  care  used  by  Mrs.  Davenport.  If  she  used 
due  care,  and  was  still  injured,  the  defendant 
would  have  been  liable,  though  the  Ifght  had 
been  burning.  The  insti-uction  required  the 
jury  to  find  that  Mi"S.  Davenport  was  in  the 
"exercise  of  ordinary  care  and  attention" 
when  injured,  before  they  could  find  for  plain- 
tiff. Loewer  v.  Sedalia,  77  Mo.  445.  We 
think  the  whole  case  was  very  fairly  submit- 1 
ted  to  the  juiy  under  the  instructions. 

5.  Complaint  is  made  that  the  verdict  is  so 
excessive  as  to  indicate  prejudice  and  passion 
on  the  part  of  the  jury.  The  evidence  shows 
that  as  a  result  of  the  injury  the  bones  in  one 
of  Mrs.  Davenport's  legs  became  diseased,  and 
finally,  after  two  years  of  care  and  nursing 
and  attention  of  physicians  and  surgeons,  the 
limb  was  amputated.  Plaintiff  was  required 
to  pay  large  sums  for  doctor's  fees,  for  med- 
icine, and  for  nursing,  besides  being  required 
himself  to  devote  much  of  his  own  time  to 
nursing  and  earing  for  her,  to  the  neglect  of 
hjs  private  business.  This  continued  for  three 
years  fi-om  the  time  of  the  injury.  We  cannot 
say,  as  a  matter  of  law,  that  tlie  damage  al- 
lowed under  the  verdict  was  excessive.  It 
was  a  question  properly  submittetl  to  the  jury. 

Judgment  affinned.     All  concur. 


NOTICE  OF  DEFECT. 


34^ 


TUCKER  et  al.  v.  SALT  LAKE  CITY. 

(37  Pac.  261,  10  Utah,  173.) 
Supreme  Court  of  Utah.     June  12.  1804. 

Appeal  from  disti-lct  court,  Salt  Lake  coun- 
ty;   before  Justice  C.  S.  Zano. 

Action  by  Eliziboth  B.  Tuclcer  and  hor  hus- 
band against  Salt  Lake  City.  Plaintiffs  ob- 
tained judgment.  Defendant  appeals.  Af- 
firmed. 

E.  D.  Hoge,  for  appellant.  Frank  B.  Steph- 
ens and  Benner  X.  Smith,  for  respondents. 

MERRITT,  C.  J.  This  action  was  brought 
by  plaintiff  and  her  husband,  who  has  since 
died,  against  the  city  of  Salt  Lake.  The 
complaint  alleges  that  on  or  about  the  1st 
day  of  August,  1800,  in  front  of  the  livery 
stable  formerly  known  as  McKimmin's  sta- 
bles, on  the  north  side  of  Third  South  street, 
between  Main  and  West  Temple  streets,  the 
said  city  made,  constructed,  and  caused  to 
be  constnicted  and  put  down  an  iron,  glass 
and  cement  sidewalk,  a  portion  of  which  was 
negligently,  willfully,  and  knowingly  con- 
structed on  a  sharp  incline,  making  a  steep 
and  slippery  descent,  dangerous,  etc.;  that 
plaintiff,  when  passing  along  said  sidewalk, 
was  unaware  of  danger,  stepped  on  said  in- 
cline, without  fault  or  negligence  on  her  part, 
was  thrown  upon  the  sidewalk,  and  broke 
her  arm,  etc.,  for  which  damages  were 
claimefl  in  the  sum  of  $4,500.  The  an- 
swer denied  all  the  allegations  of  the  com- 
plaint. A  trial  was  had  before  the  court 
and  a  jury.  The  jury  rendered  a  verdict 
in  favor  of  plaintiff  for  the  sum  of  $2,000, 
and  judgment  was  rendered  by  the  coiu-t  in 
favor  of  plaintiff  for  said  sum  and  costs. 
Defendant  moved  for  a  new  ti'ial,  which  was 
overruled,  whereupon  defendant  appealed, 
and  assigned  as  error  the  failure  of  the  court 
below  to  give  certain  instiiictions  asked  by 
defendant,  and  also  excepted,  to  the  charge 
given  by  the  court  to  the  jiu-y. 

From  a  careful  examination  of  the  rec- 
ord, we  find  no  error;  the  charge  of  the 
court  below  was  full,  and  stated  correctly  the 
law  of  the  case.  The  court  charged  the  jury 
"that  the  defendant  had  put  in  an  answer  de- 
nying the  allegation  as  to  negligence  on  the 
part  of  the  city,  and  the  burden  of  proof  is 
on  the  plaintiff  to  show  by  a  preponder- 
ance of  evidence  the  negligence  charged  in 
the  complaint;  tliat  it  was  the  duty  of  the 
city  to  use  all  reasonable  care  to  keep  and 
maintain  the  sidewalk  in  a  rea.sonably  safe 
condition  to  persons  passing  upon  it,  and 
If  the  city  knowingly  failed  to  do  so  it  is 
chargeable  with  negligence.  Though  there 
may  not  be  any  actual  notice  to  the  city,  or 
any  of  its  authorized  officers  whose  duty  it 
is  to  repair  the  sidewalks  and  remedy  danger- 
ous places,  3'et  if  you  believe  from  a  pre- 
ponderance of  evidence  that  the  danger  had 
i-emained  there  any  length  of  time;  that  the 
city  oJlicors  whose  duty  it  was   to  examine 


sidewalks  and  repair  them.  In  the  use  of  rea- 
sonable diligence,  should  have  discovered  the 
danger,— then  you  have  a  right  to  infer  notice 
to  the  city."  The  court  further  instructed 
the  jury  that  if  they  believed,  from  a  pre- 
ponderance of  the  evidence,  that  the  city  per- 
mitted this  dangerous  sidewalk,  as  alleged  in 
the  complaint,  to  remain  in  the  street,  after 
the  cit3'  officers  whose  duty  it  was  to  repair 
the  streets  knew  of  it,  or  should  have  known 
of  it  in  the  use  of  reasonable  diligence,  and 
if  they  fiu-ther  believed  that  the  plaintiff, 
without  fault  on  her  part,  and.  with  the  use 
of  due  care,  while  walking  along  the  street, 
stepped  iipon  the  incline,  as  described  in  the 
complaiat,  and  was  thrown  down  and  suf- 
fered injury  as  alleged,  then  that  they  should 
find  for  the  plaintiff.  The  court  fm-ther 
charged  the  jm-y  tliat  it  was  the  duty  of 
the  plaintiff  to  use  ordinary  care,  in  passing 
along  the  sti'eet,  to  see  and  observe  any  dan- 
gerous places  in  the  street,  and  if  they  be- 
lieved, from  a  preponderance  of  the  evidence, 
that  she  was  guilty  of  negligence  in  stepping 
on  such  a  dangerous  place,— "if  you  believe 
from  the  evidence  it  was,— which  contributed 
to  the  injui-y,  then  she  cannot  recover."  The 
court  further  charged  the  jury  that  it  was 
their  province  to  determine,  from  all  the 
evidence,  in  the  first  place,  whether  the  dan- 
ger existed,  and  whether  the  city  had  no- 
tice of  it;  as  to  whether  it  was  dangerous- 
to  persons  walking  along  with  ordinary  care; 
and  as  to  whether  the  plaintiff  used  reason- 
able care.  These  charges,  we  think,  fully 
and  fairly  stated  the  law  of  the  case,  and 
were  quite  as  favorable  to  the  defendant  as 
the  law  would  justify. 

We  have  examined  the  proposed  instruc- 
tions asked  by  defendant  and  which  were 
not  given  by  the  coiu-t,  and  find  that  their 
substance  was  already  given  by  the  comt  in 
its  charge,  with  the  following  exception,  viz.: 
The  defendant  asked  the  court  to  charge  the 
jury  that,  "if  you  find  from  the  evidence  that 
the  sidewalk  where  the  plaintiff  Elizabeth 
Tucker,  was  injured,  was  of  sufficient  width, 
and  in  such  safe  condition,  that  the  said 
plaintiff,  Elizabeth  Tucker,  by  the  use  of 
ordinary  care,  could  have  avoided  the  injury 
complained  of,  you  must  find  for  defendant," 
—which  the  court  refused  to  give,  and  which 
ruling  was  excepted  to  by  defendant,  and 
who  now  assigns  the  same  as  error.  The 
court  properly  refused  to  give  said  instruction, 
because  it  was  an  assumption  on  the  part  of 
appellant  that  as  a  matter  of  law  the  whole 
width  of  the  sidewalk  need  not  be  in  good 
condition,  and  that  a  city  is  not  compelled  to 
keep  the  whole  width  of  the  sidewalk  in 
good  condition.  That  is  not  the  law. 
"Where  a  city  opens  a  sidewalk  to  public 
travel,  it  is  bound  to  keep  every  portion  of 
it  in  repair."  Roe  v.  City  of  Kansas  (Mo.  I 
Sup.)  13  S.  W.  404;  Morrill,  City  Neg.  67; 
Brusso  V.  City  of  Buffalo,  90  N.  Y.  679.  All 
persons  using  streets  and  sidewalks  have  the 
right  to  assume  that  they  are  in  good  and 


-350 


MUNICIPAL  LIABILITY. 


safe  condition,  and  to  rebate  their  conduct 
.  on  that  assumption-  Kenyon  v.  City  of  In- 
dianapolis (Ind.)  1  Wils.  139;  Gibbons  v. 
Village  of  Phoenix  (Sup.)  15  N.  Y.  Supp.  410; 
Hopkins  v.  Ogden  City,  5  Utah,  390,  16  Pac. 
596.  The  city  engineer  of  the  defendant  cor- 
poration testified  as  follows:  "I  saw  the  side- 
walk where  the  plaintiff  fell,  when  being  con- 
structed. I  considered,  the  slope  too  gi*eat 
for  safety,  and  know  it  has  remained  in  the 
same  coaditioii  as  when  constructed."    The 


defendant  offered  no  testimony  In  the  case. 
We  consider  that  the  defendant  corporation 
was  guilty  of  gross  negligence.  The  valid- 
ity of  a  verdict  by  nine  jurors  has  akeady 
been  sustained  by  the  com-t,  and  we  adhere 
to  our  former  ruling.  There  is  absolutely  no 
merit  in  this  appeaL  The  judgment  is  af- 
firmed. 

MINER,  SMITH,  and  BAETCH,  JJ.,  con- 
cur. 


NOTICE  OF  DEFECT. 


351 


HBMBLING  v.  CITY  OF  GRAND  RAPIDS. 

(58  N.  W.  310,  99  Mich.  292.) 
Supreme  Court  of  Michigan.     March   20.  1894. 

Error  to  suporior  court  of  Grand  Rapids; 
Edwin  A.  Burlingame,  Judso. 

Action  by  Ella  R.  Hem1)ling  against  the 
city  of  Grand  Rapids.  Judgment  for  plain- 
tiff, and  defendant  brings  error.     Reversed. 

Wm.  Wisner  Taylor,  for  appellant.  Fran- 
cis A.  Stace,  (McGaiTy,  :McKnight  &  Jud- 
kins,  of  counsel,)  for  appeUee. 

McGRATH.  C.  J.  Plaintiff  seeks  to  recov- 
er for  injuries  resulting  from  a  fall  upon  an 
alleged  defective  sidewalk.  The  testimony 
tended  to  show  that  some  of  the  stringers 
were  decayed,  but  the  planking  was  in  a 
good  state  of  preservation.  The  planks  were 
2  inches  in  thickness,  and  some  12  or  14 
feet  in  length.  They  extended  several  inches 
beyond  the  curb.  There  was  evidence  tend- 
ing to  show  that  just  before  the  injury  a 
horse  had  been  tied  to  one  of  these  planks, 
and  that  just  as  the  plaintiff  came  along  the 
Tiorse  jerked  one  of  these  planks  out  of  place, 
and  that  plaintiff  stepped  into  the  aperture, 
and  fell.  The  court  instructed  the  jury  as 
follows:  "Municipal  liability  for  injuries  aris- 
ing from  defects  in  public  ways  is  the  same, 
so  far  as  concerns  innocent  persons,  whether 
the  condition  of  the  way  is  due  to  wear  and 
decay  or  to  the  misconduct  of  individuals 
in  tearing  it  up;  the  obligation  to  repair 
speedily  is  the  same."     Tliis  instruction  was 

,'  erroneous.  If  the  plank  was  displaced,  that 
displacement  was  immediately  before  the  ac- 
cident. There  was  no  showing  made  of  ac- 
tual notice  to  the  municipality,  and  no  pre- 
tense that  a  reasonable  time  to  repair  had 
elapsed;  much  less  had  sufficient  time  elapsed 
to  operate  as  constructive  notice.  In  any 
event,  the  use  of  the  word  "speedily"  was 
improper,  and  was  calciilated  to  mislead  the 

1  Jury. 

The  court  further  instructed  the  jury,  that 
"the  defect  may  exist  and  be  unknown,  and 
the  city  still  be  liable,  on  the  ground  that 
the  prime  fault  may  consist  in  being  igno- 
rant; it  being  the  clear  principle  that  a 
want  of  knowledge  may,  under  certain  cir- 
cumstances, imply  a  want  of  due  care.  The 
general  duty  of  the  city  is  to  exercise, 
through  its  officers,  a  reasimable  supervision 
over  its  streets  and  sidewalks,  and,  within 
fairly  practicable  limits,  to  be  watchful  of 
their  condition  and  trustworthiness,  and  to 
see  that  they  are  kept  in  a  reasonably  safe 
condition  for  pul)lic  travel.  Its  officers  can- 
not ignore  tlie  dictates  of  common  sense  and 
lessons  of  ordinary  experience,  and  refuse  to 
see  and  refuse  to  heed  what  others  see  and 
what  others  understand.  Such  means  should 
be  employed  by  the  officers  from  time  to 
time  in  making  their  examinations  as  usual- 
ly disclose  the  effects  to  be  expected."  This 
instruction  was  erroneous  in  that  it  assumed 


that  it  was  the  duty  of  the  mimicipality  to 
make  such  an  inspection  of  sidewalks  as 
would  disclose  latent  defects,  if  they  existed. 
Respecting  the  ordinary  sidewalks,  there  is 
no  such  duty  of  substructm^e  inspection  as  is 
imposed  in  case  of  bridges  or  other  elevated 
ways.  In  the  absence  of  actual  notice,  mu- 
nicipalities are  only  liable  for  such  defects 
in  sidewalks  as  are  apparent,  or  are  suggest- 
ed by  appearances,  or  which  are  disclosed 
by  a  test  in  the  natiure  of  the  ordinary  use 
of  such  walks. 

The  coiu-t  further  instructed  the  jury  as 
follows:  "If,  from  a  fair  preponderance  of 
evidence  in  this  case,  you  believe  that,  up  to 
and  near  the  time  of  this  injury,  the  side- 
walk where  it  occurred  was  in  a  reasonably 
safe  condition  for  the  purposes  for  which  it 
was  laid,  and  that,  on  account  of  the  sudden 
removal  of  a  plank  in  such  reasonably  safe 
sidewalk,  the  plaintiff  received  injury,  no 
matter  whether  the  plank  was  so  removed 
by  a  horse  or  individual,  in  such  case  the 
city  would  not  be  liable;  but  if  for  such 
length  of  time  that  the  city  had  actual  or 
constructive  notice,  and  time  sufficient  to  re- 
pair it,  the  sidewalk  where  the  injvu-y  oc- 
curred had  not  been  in  a  reasonably  safe  con- 
dition, and  that,  on  account  of  such  unsafe 
condition,  and  neglect  to  repair  or  make  it 
reasonably  safe  for  travel,  the  plaintiff  was 
injiu-ed,  then  and  in  that  case  the  city  would 
be  liable,  if  tlie  plaintiff  at  the  time  was  ex- 
ercising reasonable  care  and  prudence  in 
passing  along  said  sidewalk.  If  you  find 
that  the  injury  to  the  plaintiff  occurred  on 
accoimt  of  the  displacement  of  a  plank  by  a 
horse  fastened  to  it,  this  might  not  of  itself 
excuse  the  city  from  liability,  but  it  is  left 
for  you,  imder  all  circumstances,  to  deter- 
mine whether  or  not  the  sidewalk  was  rea-. 
sonably  safe  for  public  travel.  And  if  you 
find  it  was  not  so  reasonably  safe,  and  that 
the  city  had  timely  notice  of  its  unsafe  con- 
dition, and  that  the  plaintiff,  while  in  the  ex- 
ercise of  reasonable  care  on  her  part,  was  in- 
jured, and  that  unsafe  condition  of  the  walk 
was  the  approximate  cause  of  her  injury, 
then  it  matters  not  in  what  manner  the 
plank  was  actually  displaced."  The  mu- 
nicipality was  in  no  sense  responsible  for  the 
hitching  of  the  horse  to  the  plank  in  the 
walk,  nor  was  the  city  bound  to  anticipate 
such  use;  and  if,  while  plaintiff  w'as  ad- 
vancing upon  this  walk,  a  horse  hitched  to 
one  of  the  planks  suddenly  jerked  the  plank 
from  its  place,  and  plaintiff  stepped  into  the 
aperture  made  thereby,  and  fell,  receiving 
the  iujiiries  complained  of,  the  defect  in  i!  <■ 
walk  cannot  be  said  to  have  been  the  pri- 
mary cause  of  the  injury,  and  plaintiff  was 
not  entitled  to  recover.  If  this  plank  had 
been  displaced  by  some  other  pedestrian  in 
the  use  of  the  walk,  or  if  this  displacement 
had  not  been  accounted  for,  and  the  condi- 
tion of  the  walk  had  been  shown  to  be  such 
that  such  disarrangement  was  liable  to  oc- 
cvu"  in  the  ordinary  use  of  the  walk,  a  dif- 


352 


MUNICIPAL  LIABILITY. 


ferent  case  would  have  been  presented.  It 
certainly  cannot  be  contended  that,  if  par- 
ties had  been  engaged  in  tearing  up  this 
walk,  the  city  would  have  been  liable;  yet 
the  force  employed  was  directly  in  that  line. 
The  judgment  is  therefore  reversed,  and  a 
new  trial  granted. 


LONG,  GRANT,  and  HOOKER,  JJ.,  con- 
curred with  McGRATH,  C.  J. 

MONTGOMERY,  J.  I  concur  in  the  result 
reached  by  the  chief  justice,  but  I  do  not 
think  the  second  instruction  open  to  just 
criticism. 


NOTICE  OF  DEFECT. 


353 


HUNT  V.  CITY  OF  DUBUQUE. 

(G5  N.  W.  319.) 
Supreme  Court  of  Iowa.     Dec.  12,  1895. 

Appeal  from  district  court,  Dubuque  coun- 
ty;   Fred    O'Donncll,   Judse. 

Action  at  law  to  recover  for  personal  In- 
juries allowed  to  have  been  caused  by  ne^- 
li^ence  on  the  part  of  the  defendant.  There 
was  a  trial  by  jurj-,  and  a  verdict  and  judg- 
ment for  the  plaintiff.  The  defendant  ap- 
peals. 

J.  E.  Knisbt  and  W.  J.  Knight,  for  appel- 
lant.    Logueville  &  McCarthy,  for  appellee. 

ROBINSON,  J.  On  the  11th  day  of  April, 
1893,  the  plaintiff,  while  walking  on  a  side- 
walk in  a  street  of  the  defendant,  fell,  and 
received  the  injuries  of  which  he  complains. 
He  alleges  that  his  fall  was  caused  by  de- 
fects in  the  walk,  of  which  the  defendant 
had  notice,  and  that  it  was  negligent  in  not 
repairing  it  and  making  it  safe  for  travel. 
The  defendant  denies  negligence  and  lia- 
bility on  its  pai't.  The  juiT  retui'ned  a  ver- 
dict in  favor  of  the  plaintiff  for  $-4,000.  A 
motion  for  a  new  trial  having  been  filed,  the 
court  ordered  that  it  be  sustained,  unless 
the  plaintiff  should  take  judgment  for  $3,- 
200.  He  elected  to  take  judgment  for  that 
amount,  and  it  was  so  rendered. 

1.  The  appellant  complains  of  the  ruling 
of  the  court  in  permitting  a  witness,  named 
Chewning,  to  state  the  condition  of  the  walk 
at  the  time  of  the  trial.  The  court  had  rul- 
ed that  the  condition  of  the  walk  after  the 
accident  occurred  was  immaterial,  except- 
ing as  it  was  shown  to  be  the  same  then 
as  it  was  at  the  time  of  the  accident.  The 
witness  named  described  the  condition  of 
the  walk  as  he  found  it  an  hour  or  two  after 
the  accident,  and  was  then  asked:  "The 
place  where  Hunt  fell,  has  that  been  chan- 
ged?" An  objection  was  overruled,  and  the 
witness  answered:  "Yes,  sir;  I  thiulc  tliere 
is  a  new  board  put  in  there."  He  was  then 
asked:  "Well,  how  is  the  sidewalk  as  to 
being  in  the  same  condition  now  that  it  was 
at  the  time  you  examined  it?  Is  it  or  is  it 
not?"  An  objection  to  this  question  was 
also  overruled,  and  the  witnes.s  answered: 
"It  is  in  a  better  condition  than  it  was 
then."  It  will  be  noticed  that  neither  ques- 
tion called  for  any  answer  but  "Yes"  or 
"No,"  and  what  was  said  more  than  that 
was  not  called  for  bj'  the  question,  and  was 
not  in  any  manner  attacked.  So  far  as  the 
answers  were  required  by  the  qucslidus, 
they  stated  a  fact  Avhich  was  not  in  dispute. 
Several  witnesses  testiiied  witliout  objec- 
tions— one  of  them  for  the  defendiuit  and  at 
its  instance — that  the  walk  was  repaired 
within  a  short  time  after  the  accident  oc- 
curred. Hence  the  defendant  could  not 
have  been  prejudiced  by  the  niliugs  to 
which  it  objects. 

ABB.CORP.— 23 


2.  The  appellant  complains  of  testimony 
given  by  Mrs.  Dickenson  in  regard  to  the 
condition  of  the  walk  both  before  and  after 
the  accident.  She  lived  in  the  house  next  to 
the  sidewalk  in  question  more  than  three 
years,  and  was  familiar  with  its  condition 
during  that  time.  She  moved  from  the 
house  about  six  months  before  the  accident 
occurred,  but  noticed  its  condition  after  she 
moved,  and  at  about  the  time  of  the  acci- 
dent. She  described  the  condition  of  the 
\^alk  the  year  before  the  accident,  and  stat- 
ed, in  effect,  that  its  condition  was  subtjtan- 
tially  unchanged  at  about  the  time  of  the 
accident.  This  was  competent  evidence  to 
show  the  actual  condition  of  the  walk,  and 
that  it  had  been  in  a  defective  and  danger- 
ous condition  for  such  a  length  of  time  tliat 
the  defendant  should  be  charged  with 
knowledge  of  the  defect  before  the  accident 
occurred.  The  witness  was  also  permitted 
to  state  that  she  had  seen  people  stumble  at 
the  defective  part  of  the  walk,  and  that  she 
saw  an  old  gentleman  stop  and  push  the 
board  down  with  his  cane.  The  testimony 
tended  to  show  the  condition  of  the  walk, 
and  was  material  for  that  purpose,  when 
taken  with  other  evidence,  to  show  that  the 
condition  continued  until  the  accident  oc- 
curred. Smith  V.  Des  Moines,  84  Iowa,  GS8; 
51  N.  W.  77;  District  of  Columbia  v.  Armes, 
107  U.  S.  519,  2  Sup.  Ct.  840;  Bloomington  v. 
Legg  (111.  Sup.)  37  N.  E.  690;  Grundy  v. 
City  of  Janesville  (Wis.)  54  N.  W.  108(5;  Al- 
berts V.  Village  of  Vernon  (Mich.)  ,55  N.  W. 
1023.  We  do  not  find  any  reversible  error 
on  rulings  on  the  admission  of  evidence. 

8.  The  petition  alleges  that  the  defendant 
"had  notice  of  the  defective  and  dangerous 
condition  of  the  sidewalk  at  and  before  the 
happening  of  the  accident,"  and  "that,  not- 
withstanding such  notice,  the  city  negli- 
gently allowed  the  same  to  be  out  of  proper 
repair,  and  made  no  effort  to  make  the  same 
safe  for  travel."  The  charge  to  the  jury,  in 
eft'ect,  instructed  them  that  if  the  plain- 
tiff, without  fault  on  his  part,  had  sustained 
damage  by  reason  of  the  defective  condi- 
tion of  the  walk,  he  could  recover  if  the  de- 
fective condition  "had  existed  for  such  a 
length  of  time  before  the  alleged  accident 
as  that  the  defendant,  through  its  officers, 
should  have  known  of  such  condition";  also, 
that  "the  plaintiff"  is  not  required  to  prove 
actual  notice  to  the  city  of  such  defect.  If 
the  sidewalk  became  out  of  repair  to  such 
an  extent  as  to  render  it  unsafe  for  travel, 
and  was  permitted  to  remain  in  such  condi- 
tion for  such  length  of  time,  and  was  so 
open  and  apparent  and  visible  to  the  pass- 
ers-by, as  to  be  notorious,  it  may  be  pre- 
sumed by  the  jury  that,  from  such  notoriety, 
the  proper  officer  of  the  city  did  in  fact 
know  of  it,  or  with  proper  diligence  might 
have  known  of  this  defective  condition,  in 
time  to  have  repaired  it  before  the  accident 
complained  of."  The  appellant  complains 
of  these  and  other  portions  of  the  charge 


354 


MUNICIPAL  LL\BILITY. 


which  authorized  the  jury  to  find  against 
the  defendant,  even  though  it  had  no  actual 
notice  of  the  defective  condition  of  the 
walk,  on  the  ground  that  the  petition  only 
charges  actual  notice,  and  that  there  can  be 
no  recoveiT  unless  that  is  shown.  We  do 
not  think  this  claim  can  be  sustained.  The 
'petition  charges  notice  without  stating 
whether  it  was  actual  or  coustinictive,  and 
proof  of  either  would  sustain  the  averment. 
It  is  Avell  settled  that  the  notice  need  not 
be  actual.  Montgomery  v.  City  of  Des 
Moines,  55  Iowa,  101,  7  N.  W.  41.'1;  Rice  v. 
Same,  40  Iowa,  Go8. 

4.  The  evidence  tends  to  show  that  the 
plaintiff  has  sustained  serious  and  perma- 
nent injuries,  but  there  is  much  conflict  in 
the  evidence  in  regard  to  their  cause  and  ex- 
tent. It  appears  that,  about  fifteen  years 
before  the  accident  in  question,  he  was  in- 
jured by  the  explosion  of  the  boiler  of  an 
engine,  and  it  is  insisted  that  his  present 
condition  is  caused  chiefly,  if  not  wholly,  by 
the  injuries  he  then  received,  and  that  the 
amount  of  recovery  is  excessive.  The  na- 
ture and  extent  of  the  injuries  of  which  the 


plaintiff  complains,  and  their  cause,  were 
matters  for  the  jury  to  determine.  The  evi- 
dence authorized  them  to  find  that,  at  the 
time  of  the  accident,  he  had  almost  wholly 
recovered  from  the  effects  of  the  explosion; 
that  excepting  an  injury  to  one  hand,  which 
did  not  seem  to  affect  his  capacity  to  labor 
in  his  business,  which  is  that  of  a  station- 
ary engineer,  he  had  been  sound,  and,  ex- 
cepting for  short  periods  of  time,  well,  for 
10  years;  that  the  injuries  of  which  he  com- 
plains were  caused  by  the  accident  in  ques- 
tion; and  that  they  have  caused  much  loss 
of  time  and  great  suffering;  and  that  they 
have  permanently  impaired  his  ability  to 
work.  Hence  we  cannot  say  that  the 
amount  which  he  has  recovered  is  exces- 
sive. 

5.  Other  questions  have  been  discussed  by 
counsel.  Some  are  not  of  sufficient  impor- 
tance to  require  specific  mention,  and  oth- 
ers are  immaterial  in  view  of  the  conclu- 
sions we  have  announced.  There  does  not 
appear  to  be  any  sufficient  ground  for  dis- 
turbing the  judgment  of  the  district  court, 
and  it  is  affirmed. 


NOTICE  OF  DEFECT. 


855 


WEST  V.  CITY  OF  EAU  CLAIRE. 

(61  N.  W.  313,  89  Wis.  31.) 

Supreme  Court  of  Wisconsin.     Dec.  11,  1894. 

Appeal  from  circuit  court,  Eau  Claire  county; 
W.  F.  Bailey,  Judge. 

Action  by  Louisa  West  against  tlie  city 
of  Eau  Claire  for  personal  injuries.  There 
was  a  judgment  for  plaintiff,  and  defendant 
appeals.     Affirmed. 

Geo,  0.  Teall,  for  appellant.  T.  F.  Frawley 
and  A,  C.  Larson,  for  respondent. 

XRW^L\N.  .T.i  *  *  *  *  ♦  * 
The  evidence  on  the  part  of  the  plaintiff 
tended  to  prove  that  at  the  place  of  the  ac- 
cident was  a  ridge  of  snow  and  ice  along  the 
track  of  the  travel  on  the  sidewalk,  caused 
by  the  ti'avel  over  the  snow,  which  had  been 
allowed  to  remain  and  accumulate  there; 
that  such  ridge  was  uneven  and  slippery; 
that  beside  and  near  the  ridge  was  a  hole  in 
the  plank  of  the  sidewalk;  that  at  the  time 
of  the  accident  the  plaintiff's  attention  was 
momentarily  diverted;  that  she  slipped,  her 
foot  went  through  the  hole,  and  was  held 
there  until  she  fell  in  such  a  way  as  to  break 
her  ankle;  and  that  this  hole  had  been  there 
from  the  previous  summer.  The  evidence 
tended  to  establish  all  the  facts  necessary  to 
entitle  the  plaintiff  to  recover.  It  was  the 
undoubted  province  of  the  jury  to  determine 
■wiiether  it  did  establish  such  facts.  This 
court  has  held  repeatedly,  and  recently  in 
Koch  V.  City  of  Ashland  (decided  at  the  last 
assignment,  and  not  yet  officially  reported) 
€0  N.  W.  990,  that  such  an  accumulation  of 
snow  and  ice  upon  a  sidewalk  may  consti- 
tute a  defect  for  which  the  city  may  be  lia- 
ble, while  such  a  hole  in  a  sidewalk  may 
unquestionably  be  such  a  defect  The  mo- 
mentary diversion  of  the  plaintiff's  attention 
could  not  be  contributory  negligence,  as  mat- 
ter of  law.  The  case  was  not  so  clear  on  ei- 
ther branch,  upon  the  evidence,  as  to  call 
upon  the  court  to  withdraw  it  from  the  jury. 
These  were  questions  peculiarly  within  the 
province  of  the  jury.  It  was  not  error  to 
deny  the  motion  for  a  nonsuit.  The  defend- 
ant offered  no  evidence.  The  case  was  sub- 
mitted to  the  jury  for  a  special  verdict.  The 
jury  found  specially  that  the  hole  in  the 
sidewalk  was  a  defect,  and  caused  the  acci- 
dent; that  the  defect  had  existed  for  so  long 
a  time  that  the  defendant  should  have  known 
of  and  repaired  it;  and  that  no  negligence  on 
the  part  of  the  plaintiff  contributed  to  pro- 


rw, 

I    CO 


1  Part  of  the  opinion  is  omitted. 


duce  the  accident  It  cannot  be  held  that 
there  was  no  evidence  to  support  the  ver- 
dict upon  either  point.  On  the  contrary,  it 
was  fully  suflicient  on  each  point. 

But  the  defendant  claims  errors  in  several 
instructions  given  by  the  court  to  the  jury. 
As  to  the  question,  in  what  did  the  defect  con- 
sist? the  court  instructed  as  follows:  "Now, 
if  you  consider  the  snow  was  allowed  to  ac- 
cumulate and  did  accumulate  there.  If  you 
consider  that  was  a  defect,  of  course  you 
will  say  so;  if  the  evidence  satisfies  by  a 
preponderance  of  such  evidence  that  there 
was  a  hole  in  the  sidewalk,  of  that  charac> 
ter,  size,  and  condition,  whioh  rendered  the 
sidewalk  unsafe  for  ti'avel,  why  then  you 
will  state,  of  course,  it  was  the  hole  in  the 
sidewalk,  if  the  evidence  should  satisfy  you 
that  the  hole  was  thei-e  at  the  time."  This 
seems  to  be  unobjectionable.  Either  the 
ridge  or  the  iiole  might  be  so  serious  a  defect 
as  to  sustain  plaintiff's  action.  Both  togeth- 
er, or  the  hole  alone,  might  be  sutficient 
cause  to  produce  plaintiff's  accident. 

The  court  also  instructed:  "If  you  find  that 
she  would  not  have  fallen,  while  carefully 
walking  upon  this  ice,  unless  her  feet  had 
gone  into  some  hole  or  defect  in  the  side- 
walk, then  you  will  answer  that  it  was 
caused  by  her  slipping  on  the  ice,  primarily, 
and  a  foot  slipping  upon  the  ice  into  a  de- 
pression in  the  sidewalk,  if  the  evidence  so 
satisfies  you."  And  so  the  jury  found.  The 
objection  made  to  this  instruction,  and  to 
the  verdict  upon  this  question,  is  that  there 
is  no  direct  or  positive  evidence  that  the 
plaintiff's  foot  went  into  a  hole  in  the  side- 
walk at  all.  No  one  saw  iier  foot  in  such  a 
place,  and  plaintiff  could  not  testify  posi- 
tively just  how  her  ankle  come  to  be  broken. 
The  hole  was  there;  the  foot  was,  some- 
how, held;  the  ankle  was  broken.  It  would 
be  a  legitimate  inference,  and  not  "mere 
conjecture,"  for  the  jury  to  find  that  the 
foot  went  into  the  hole,  and  was  held  there, 
and  that  that  was  the  manner  of  the  acci- 
dent 

The  defect  which  the  jury  found  to  be  the 
cause  of  the  accident  tiad  been  in  the  side- 
walk since  the  previous  summer.  It  was 
not  error  for  the  court  to  instruct  the  jury 
that  that  was  sufficient  time  in  which  the 
city  should  have  learned  of  and  repaired 
the  defect 

The  evidence  Is  sufficient  to  support  the 
verdict  The  instructions  contain  no  error, 
at  least  no  important  error.  There  was  no 
error  in  denying  the  defendant's  motion  to 
set  aside  the  verdict  The  judgment  of  the 
circuit  court  is  affirmed. 


856 


MUNICIPAL  LIABILITY. 


CITY  OF  WABASHA  v.  SOUTHWORTH. 

(55  N.  W.  818,  54  Minn.  79.) 
Supreme  Court  of  Minnesota.     June  29,   1893. 

Appeal  from  district  court,  Wabasha  cotin- 
ty;    Start,  Judge. 

Action  by  the  city  of  Wabasha  against 
Asahel  D.  Southworth  to  recover  the  amount 
plaintiff  was  reqtiired  to  pay  one  Schinzel 
for  injuries  sustained  by  a  defective  sidewalk 
along  defendant's  premises.  Plaintiff  had 
judgment,  and  defendant  appeals.    Affirmed. 

J.  F.  McGovern  and  Gotild  &  Snow,  for  ap- 
pellant. Jolin  W.  Steele  and  Lloyd  W.  Bow- 
ers, for  respondent. 

MITCHELL,  J.  If  the  findings  of  fact 
were  justified  by  the  evidence,  there  is  noth- 
ing new  or  doubtful  in  the  law  governing 
this  case.  In  order  to  entitle  the  plaintiff  to 
recourse  on  the  defendant  for  the  money 
which  it  had  paid  in  settlement  of  the  claim 
of  Schinzel  for  injuries  sustained  by  reason 

'  of  the  defective  sidewalli,  it  was  necessary 

I  to  establish— First,  that  the  city  was  liable 
to  Schinzel  by  reason  of  negligence  in  the 

'  performance  of  its  duty  to  the  pubnc  to  Keep 
its  streets  in  safe  condition;  and,  second, 
that  defendant  was  also  Uable  to  Schinzel  by 
reason  of  his  negligence  in  constructing  or 
maintaining  the  nuisance  in  the  street  which 
caused  the  injury.  If  these  two  facts  were 
established,  then  the  right  of  the  city  to  re- 
course against  the  defendant  is  not,  and  could 

I  not  successfully  be,  denied. 

There  is  nothing  in  the  point  that  the  mode 
of  procedure  prescribed  by  the  city  charter 
(Sp.  Laws  18S9,  c.  13,  subc.  7,  §  IG)  is  ex- 
clusive, and  that  the  city's  only  remedy  was 
to  let  the  claim  of  Schinzel  go  to  judgment 
against  both  it  and  Southworth,  pay  the  judg- 
ment, and  then  enforce  it  against  Southworth. 
This,  like  similar  provisions  in  other  charters, 
is  designed  to  aid  and  not  to  hinder  cities  in 
dealing  with  such  claims,  so  that  the  liabil- 
ity of  a  third  party  may  be  determined  and 
enforced  in  the  same  action  in  which  that  of 
the  city  is  determined  and  enforced.  Tlie 
only  effect  of  the  city's  settling  the  claim 
without  such  judgment  was  that  the  ques- 
tions upon  which  the  liability  of  Southworth 
depends  were  left  open.  See  Jones  v.  City 
of  Minneapolis,  31  Minn.  230,  17  N.  W.  Rep. 
377;  Clark  v.  City  of  Austin,  38  ISIinn.  487, 
38  N.  W.  Kep.  615;  Mill  Co.  v.  Wheeler,  31 
Minn.  121,  IG  N.  W.  Rep.  698. 
-.    The  coiH-t  found  that  the  city  might,  by  the 

/  exercise  of  onlinary  care,  have  Ivuown  of  the 
imsafe  condition  of  this  sidewalk  in  time  to 
repair  it  before  the  accident  occurred.  This 
finding,    which    is    not    assailed,    settles    the 

\  question  of  the  city's  liability  to  Scliinzel. 
Passing  over  the  finding  to  the  effect  that 

I  tills  hatchway  in  the  sidewallc  was  originally 
constructed  in  a  negligent  and  imsafe  man- 

f  ner,   (which  we  think   was  justified   by   the 

1  evidence,)  the  court  further  found  that  the 

I  defendant  knew,  or  by   the  exercise  of  or- 


;/ 


dinary  care  might  have  known,  of  the  exist-  r 
ence   and    character   of   this   hatchway   and   I 
covering  at  the  time  he  purchased  the  prop-  / 
erty;    also,  that  for  more  than  a  year  prior  ( 
to  the  accident  he  had  negligently  suffered 
and  permitted  tills  covering  or  trapdoor  over  / 
the  hatchway  to  become  decayed  and   un- 
securely    fastened    and    supported,    whereby  ) 
the  sidewalk  over  the  excavation  underneath  I 
became  and  was  unsafe  for  ordinary  travel. 
That  the  first  part  of  this  finding  was  sup 
ported  by  the  evidence  is  beyond  question. 
Indeed,  we  think  tlie  evidence  was  stich  as  tO' 
require  a  finding  that  defendant  had  actual 
knowledge  of  the  existence  and  character  of 
this  hatchway  as  long  ago  as  the  date  of  hl& 
purchase  of  the  undivided  half  of  the  abut- 
ting property  in  1873.     Nor  in  our  opinion  is 
there  any   more  room  for  doubt  as  to  the 
sufficiency  of  the  evidence  to  justify  the  lat- 
ter part  of  the  finding.     The  defendant  main- 
tained this  hatchway  in  the  street  by  anow-  I 
tng  it  to  remain  there,  with  knowledge  of  itsi 
existence.     The  fact  that  he  had   not  used' 
it  for  some  years  is  immaterial,  and  the  claim  / 
that  he  had  relieved  himself  from  responsi-/ 
bility  by  abandoning    it    is  without    merit.' 
Having  been  constructed  in  the  street  for  the  i 
convenience    of    his    abutting    property    the  I 
only  way  he  could  relieve  himself  from  the  I 
duty  of  keeping  it  in  repair  was  to  restore 
the  street  to  its  original  condition  by  filling  | 
up  the  excavation  and  replacing  the  string-  I 
ers  under  the  sidewalk.     Nichols  v.  City  of  / 
Minneapohs,   33   Minn.   430,   23  N.   W.   Rep. 
868. 

The  negligence    of    the    defendant  in  the  t 
maintenance  of  this  hatchway  or  cellar  way  * 
we  place  upon  his  lack  of  ordinary  care  in 
not  taking  reasonable  precautions  to  keep  it 
in  safe  condition,  and  not  upon  the  ground 
Luat  aU  excavations,  basement  or  cellar  ways, 
scuttles,  and  the  lUce,  made  or  constructed 
in  the   street  without  afiirmative   municipal 
license,  are  per  se  unlawful,  and  nuisances. 
>  amerous  reported  cases,  both  in  this  coim-  ^ 
try  and  England,  show  that  it  has  been  as-  j 
sumed,  time  out  of  mind,  in  accordance  with 
a  custom  of  long  standing,  that,  even  in  the  ' 
absence  of  any  express  hcense,  this  is  a  le-  I 
gitimate  use  of  the  street  for  the  convenience  ■ 
of  abutting  property,  provided  it  be  exercised  j 
in   a  proper  and   safe    manner,   and    conse- 
quently that  the  property  owner  is  not  an  ; 
absolute  insurer  agaiust  all  injuries  resulting 
from    the    existence    of   such    tilings    in    the 
street,  but  is  only  responsible  for  negligence  I 
or  want  of  reasonable  care  in  their  constnic-  j 
tion  or  maintenance.     This  we  deem  the  cor-  i 
rect  view  of  tlie  hiw  on  this  subject.     Seej 
Fisher  v.  Thirkell,  21  Mich.  1. 

But  such  struftiu'es  having  been  placed  in  I 
the  street  for  the  convenience  of  the  abutting  1 
property,  it  stands  to  reason  mat,  as  between  ; 
tlie  property  owner  and  the  city,  the  duty  of  ' 
maintaining  them  in  a  safe  condition  de-  ' 
volves  on  the  former.  Defendant  was  bound, 
in  the  exercise  of  ordinary  care,  to  take  no- 
tice of  the  fact  that  wood  will  decay.    Lan- 


LIABILITY  FOR  ABUTTER'S  NEGLIGENCE. 


357 


dru  V.  Lund,  38  Minn.  538,  38  N.  W.  Rep. 
ODD.  The  fact  that  the  pUmks  forming  the 
cover  of  this  hatchway  showed  no  signs  of 
decay  on  the  upper  side  did  not  justifj'  the 
defendant  in  assuming,  without  inspection, 
that  they  and  tlio  stringers  on  wliich  they 
rested  liad  not,  in  the  IS  years  or  more  tliat 
they  had  been  there,  become  rotten  under- 
neath, where  they  were  excluded  from  the 
sun  and  subjected  to  constant  moisture. 
Leaving  these  planlcs,  which  were  a  part  of 
a  public  sidewalk,  over  an  excavation  hve  or 
six  feet  deep,  with  the  middle  stringers  of 
the  sidewalk  cut  away,  the  only  support  of 
the  plauks  being  at  the  two  ends,  the  sui)- 
port  at  the  inner  end  next  the  building  being 
only  about  an  inch  in  width  of  a  perishable 
wooden  stringer,  and  failing  to  inspect  them 
for  all  these  years,  to  ascertain  their  condi- 
tion, constituted  a  state  of  facts  that  abun- 
dantly justified  the  court  in  finding  that  de- 
fendant was  guilty  of  negligence.  The  de- 
fendant, however,  sought  to  escape  liability 
by  attempting  to  show  that  he  had  rented 
the  premises  to  certain  tenants,  and  that  they, 
and  not  he,  wei"e  responsible  for  the  mainte- 
nance of  this  hatchway  and  cover;  and  the 
refusal  of  the  court  to  make  a  finding  as  to 


the  possession  and  occupancy  of  the  premises 
by  these  tenants  before  and  at  the  time  of 
the  accident  is  assigned  as  error.  Without 
considering  the  points  that  the  pleadings 
raised  no  such  issue,  and  that  according  to 
the  findings  of  the  court  this  cover  to  the 
hatchway  was  already  in  an  imsafe  condi- 
tion before  the  date  of  the  lease  to  the  ten- 
ants, it  is  enough  to  say  tliat  there  was  not 
a  particle  of  evidence  that  the  lease  included' 
the  cellar  or  the  hatchway. 

There  is  no  merit  in  defendant's  seventh 
assignment  of  error.  Of  coui'se,  the  city  was 
not  liable  to  Schinzel  for  his  attorneys'  fees 
as  such,  but  the  $150  La  this  case  was  paid  to 
his  attorneys  as  part  of  the  amount  which 
the  city  had  agreed  with  him  to  pay  in  set- 
tlement of  his  claim  against  it  for  damages. 
In  legal  effect,  it  was  paid  to  Schinzel,  and 
as  long  as  it  was  paid  for  his  benefit,  and  in 
settlement  of  his  claim  against  the  city,  it 
was  wholly  immaterial  to  whom  the  money 
was  actually  paid  over;  the  aggregate  amount 
paid  out  in  all  being  within  the  amount  for 
wliich  the  city  and  the  defendant  were  liable 
to  him.  As  we  do  not  discover  any  error  in 
iiie  record,  the  judgment  appealed  from  must 
]>Q  atfirmed. 


358 


MUNICIPAL  LIABILITY. 


LAMBERT  v.  PEMBROKE. 

(23  Atl.  81,  66  N.  H.  280.) 

Supreme  Court  of  New  Hampshire.     Merrimack. 
July  25,  1890. 

Exceptions  from  Merrimack  county;  be- 
fore Justice  Allen. 

Case  for  injuries  on  a  highway.  At  the 
close  of  plaintiff's  evidence  defendant  mov- 
ed for  a  nonsuit,  and  the  motion  was  grant- 
ed.    Plaintiff  excepts. 

Burnham,  Brown  &  Warren,  for  plaintiff. 
Chase  &  Streeter,  for  defendant 

,  BLODGETT,  J.  Sidewalks,  when  a  part 
/of  the  public  highways,  must  be  properly 
I  constructed  and  guarded,  and  kept  in  suit- 
l  able  repair,  (Hall  v.  Manchester,  40  N.  H. 
410,  414;)  and,  there  being  no  provision  in 
the  statute  as  to  damages  which  limits  the 
liability  of  towns  and  cities  to  open  defects, 
it  extends  to  all  defects  which  render  them 
\  unsuitable  for  the  travel  thereon,  (Gen. 
Laws,  c.  75,  §  1;  Burt  v.  Boston,  122  Mass. 
226.)  Among  such  defects  are  those  result- 
ing from  natural  decay  or  faulty  construc- 
tion. Howe  V.  Plainfleld,  41  N.  H.  1.35,  138; 
Bard  well  v.  Jamaica,  15  Vt.  438,  442;  Alex- 
ander V.  Mt.  Sterling,  71  111.  3G6,  369;  Rapho 
V.  Moore,  68  Pa.  St.  404.  And  it  is  no  de- 
fense that  the  highway  was  built  by  the 
abuttor;  for,  when  a  town  permits  a  third 
person  to  construct  a  highway,  it  is  liable 
for  its  defects  the  same  as  if  it  had  been 
built  by  the  town  itself.  Willey  v.  Ports- 
mouth, 35  N.  H.  303,  313;  Saulsbury  v.  Itha- 
ca, 94  N.  Y.  27.  But  when  the  immediate 
cause  of  the  injury  to  the  plaintiff  is  such 
that  the  town  could  not  have  had  notice  of 
it,  or  could  not,  in  the  exercise  of  reason- 
able care,  have  prevented  or  remedied  it  be- 
fore the  accident,  the  town  is  not  liable. 
Palmer  v.  Portsmouth,  43  N.  H.  265;  Cham- 
berlain V.  Enfield,  Id.  363;  Clark  v.  Barring- 
ton,  41  N.  H.  44;  Hubbard  v.  Concord,  35  N. 
H.  52;  Howe  v.  Plainfleld,  supra;  Johnson 
V.  Haverhill,  Id.  74.  The  immediate  cause 
of  the  injury  to  this  plaintiff  was  the  sinking 


of  the  sidewalk  under  her  feet,  which  result- 
ed from  the  breaking  of  the  wooden  planks 
in  the  cellar  wall  of  the  adjacent  building, 
either  from  natural  decay  or  from  native 
weakness,  whereby  the  earth  in  front  of 
them  fell  into  the  cellar,  and  thus  left  the 
briclv  part  of  the  walk  without  support  be- 
neath, although  up  to  the  moment  of  the 
injury  it  was  even  throughout,  and  apparent- 
ly firm  upon  the  surface.  With  these  con- 
ditions existing  at  the  time  of  the  injury, 
the  sidewalk  must  be  regarded  as  defective, 
within  the  meaning  of  the  statute  making 
towns  liable  for  defects  in  highways;  and 
the  remaining  question  is  whether  there  was 
any  competent  evidence  tending  to  show  the 
want  of  reasonable  care  on  the  part  of  the 
defendant  in  not  preventing  or  remedying 
the  defect  before  the  accident.  Ordinarily, 
the  question  of  reasonable  care  is  a  question 
of  fact  for  the  jury,  and  especially  in  cases 
for  damages  received  upon  a  highway;  and 
no  reason  is  perceived  why  it  should  not 
have  been  so  treated  in  this  case,  inasmuch 
as  the  defect  was  not  one  of  which  the  de- 
fendant could  not  have  had  notice,  and  there 
having  been  upon  the  question  of  their  cause 
competent  evidence  tending  to  show  that 
the  planks  were  originally  unsuitable  and 
unsafe  for  the  use  to  which  they  were  put, 
or  might  have  reasonably  been  expected  to 
shortly  become  so  through  natural  causes. 
As  matter  of  law,  it  cannot  properly  be  de- 
termined upon  this  evidence  whether  the  de- 
fendants are  or  are  not  chargeable  with  the 
want  of  reasonable  care.  It  is  for  the  jury 
alone  to  decide  whether,  taking  into  account 
the  cause  of  the  defect,  and  all  the  attend- 
ing circumstances,  the  fair  inference  from 
the  evidence  is  that  the  defect  is  one  which 
the  town  might  and  should,  in  the  exercise 
of  reasonable  care,  have  prevented  or  reme- 
died before  the  accident;  and  we  are  there- 
fore of  opinion  that  this  question  should 
have  been  submitted  to  them,  and  the  motion 
for  a  nonsuit  denied.     Exceptions  sustained. 


ALLEN,  J.,  did  not  sit. 
curred. 


The  others  con- 


CONTKIBUTORY  NEGLIGEXCE  OF  TEIISON  INJURED. 


359 


OWEN  V.  CITY  OF  FT.  DODGE. 
(67  N.  W.  281.) 
Supreme  Court  of  Iowa.     May  1(1,  1S9G. 
Appeal  from  district  court,  Webster  coun- 
ty;   S.  M.  Weaver,  Judge. 

Action  at  law  to  recover  damages  for  per- 
sonal injuries  received  by  plaintiff  by  reason 
of  a  defective  sidewalk  or  crossing  in  the 
defendant  city.  There  was  a  trial  to  a  juiy, 
verdict  and  judgment  for  plaintiff,  and  de- 
fendant appeals.     Affirmed. 

Blake  &  Mitchell  and  Botsford,  Healy  & 
Healy,  for  appellant.  Yeoman  &  Kenyon, 
for  appellee. 

DEEMER,  J.     On  the  evening  of  the  14th 
day  of  October,  1S92,  the  plaintiff,  while  at- 
tempting to  pass  over  a  plank  street  crossing 
In  the  defendant  city,  stepped  between  the 
boards  there  laid,  and  received  the  injuries 
of  which  she  complains.     She  alleged  that 
the  crossing  on  which  she  was  injured  was 
at  the  corner  of  Cass  and  Locust  streets,  be- 
ing the  southeast  corner  of  block  11  in  Mor- 
rison and  Duncombe's  addition  to  the  city,  at 
the  southwest  corner  of  Cass  at  its  intersec- 
tion  with  Locust  street,   and  on  the  north 
side  of  Locust  street;    that  the  crossing,  as 
originally  constructed,  was  defective,  iu  that 
an  open  space  of  about  one  foot  was  left  be- 
tween the  planks,  which  were  laid  length-   • 
wise  across  a  ditch  or  gutter  in  the  street; 
and  that  the  crossing  had  remained  in  this 
defective  condition,  with  the  knowledge  and   , 
consent  of  the  city  authorities,  for  more  than   ; 
four  months  prior  to  the  accident.     She  also   ' 
averred  that  she  was  free  from  negligence   , 
contributing  to  her  injury,   and   she  asked   ' 
judgment    for   $9,000.     The   defendant,    for  ; 
answer,  denied  all  allegations  of  the  petition,   : 
and  further  pleaded  as  an  affirmative  de-  \ 
fense    that    the    accident    happened    at    the  i 
southwest  corner  of  block  11,   and  on   the  i 
north  side  of  Tx)cust  street,  and  at  the  north-  ! 
west  corner  of  the  intersection  of  Cass  and  ' 
Locu.st  streets  in  the  city  of  Ft.  Dodge;   and  i 
that  no  notice,  such  as  required  by  section  1,   i 
c.  25,  Acts  22d  Gen.  Assem.,  has  been  served  : 
upon  the  defendant.     The  case  was  tried  to  ! 
a  jury,  which  returned  a  verdict  for  plaintiff  1 
in  the  sum  of  $2,rH>0,  upon  which  judgment  : 
was  rendered,  and  this  appeal  followed.  1 

1.  The  first  matter  called  in  question  by  \ 
appellant's  counsel  relates  to  the  sufficiency  i 
of  the  preliminary  notice  given  by  plaintiff.  ■ 
The  statute  referred  to  by  defendant  in  its  ' 
answer  is  as  follows:     "In  all  cases  of  per-  ; 
sonal  injury  resulting  from  defective  streets   i 
or  sidewalks,  or  from  any  cause  originating  j 
in  the  neglect  or  failure  of  any   municipal 
coi^oratiou  or  its  officers  to  perform  their 
duty  in  constructing  or  maintaining  streets 
or    sidewalks,    no    suit    shall    be    brought 
against    the    corporation    after    six    months 
from  the  time  of  the  injury  unless  written 
notice  specifying  the  place  and  circumstan- 
ces of  the  injury  shall  have  been  served  up- 


on such  municipal  corporation  within  ninety 
days  after  the  injury."  This  action  was 
commenced  more  than  six  months  after  the 
injury,  and  plaintiff  served  a  notice  upon 
the  defendant,  iu  which  she  stated  that  she 
received  her  injuries  "while  walking  along 
the  sidewalk  on  the  west  side  of  Cass  street 
and  attempting  to  cross  Locust  at  the  south- 
west corner  of  Cass  at  its  intersection  with 
Locust."  Now,  it  appears  that  Locust  street 
runs  east  and  west,  and  Cass  north  and 
south,  through  Morrison  and  Duncombe's 
addition  to  the  defendant  city;  that  blocks 
4  and  11  are  immediately  north  of  Locust, 
and  12  and  3  south  of  it,  and  that  blocks  3 
and  4  are  immediately  east  of  Cass,  and  11 
and  12  are  immediately  west  The  follow- 
ing plat  will  explain  the  situation: 


Street 


/- 

N 

fill    _  . 

^c 

X.ac  uLSt 


"BeTYvVavlt 


btrttt 


1    r 


1    r 


The  appellant  contends  first  that  the  no- 
tice locates  the  place  a  block  away  from 
where  the  injury  occurred,  and  also  insists 
that  plaintiff'  claims  the  spot  to  be  at  three 
different  places,  to  wit.  the  southeast  cor- 
ner of  block  11,  northwest  corner  of  Cass 
and  Locust  streets,  and  the  southwest  cor- 
ner of  Cass  and  Locust  streets.  With  refer- 
ence to  the  first  contention,  it  appears  from 
a  plat  attached  to  defendant's  abstract  that 
the  southeast  corner  of  block  11  is  at  the 
intersection  of  Cass  and  Walnut  streets,  but 
appellee  has  filed  an  amended  abstract,  from 
which  it  appears  that  this  is  an  error,  and 
that  the  corner  is  at  the  intersection  of  Cass 
and  Locust.  This  amended  abstract  is  not 
denied,  and  we  accept  the  statements  there- 
in made  and  the  plats  attached  as  true.  We 
also  find,  after  a  close  examination  of  the 
record,  that  the  plaiutift"  has  not  at  any  time 
contended  or  charged  that  the  accident  oc- 
curred at  the  northwest  corner  of  Cass  and 
Locust  streets.  The  only  question  which  re- 
mains, then,  is,  is  the  notice  which  says  that 
the  accident  occurred  "while  plaintiff  was 
passing  along  the  sidewalk  on  the  west  side 
of  Cass  street,  and  as  she  attempted  to  cross 
Locust  at  the  southwest  corner  of  Cass 
street  at  its  intersection  with  Locust,"  suffi- 
cient? It  will  be  observed  that  the  state- 
ment is  not  that  the  accident  happened  at 
the  southwest  corner  of  the  intersection  of 


-360 


CONTRIBUTORY  NEGLIGENCE  OF  PERSON  INJURED. 


Cass  and  Locust  streets,  which  would  un- 
doubtedly mean  a  point  at  the  northeast 
corner  of  block  12,  but  the  southwest  comer 
of  Cass  street  at  its  intersection  with  Locust, 
which  might  mean  the  northeast  corner  of 
block  12,  but  might  also  properly  be  used  in 
referring  to  the  southeast  corner  of  block  11. 
It  is  well  known,  however,  that  it  is  very 
difficult,  in  our  ordinary  speaking,  to  locate 
a  street  corner  by  using  the  points  of  the 
compass.  When  one  refers  to  the  northwest 
corner  of  a  certain  street  intersection,  he  is 
frequently  understood  as  referring  to  the 
northwest  corner  of  the  block  south  and  east 
of  the  crossing,  but  more  often,  of  course, 
to  the  southeast  corner  of  the  block,  north 
and  west  from  the  intersection.  But  when 
he  speaks  of  the  southeast  corner  of  a  cer- 
tain street  at  its  intersection  with  another, 
he  may  refer  to  the  northeast  corner  of  the 
block  lying  south  and  west  from  the  cross- 
ing; although  one  would  probably  be  justi- 
fied in  inferring  that  reference  was  made  to 
the  southeast  corner  of  the  block  lying  north- 
west from  the  street  crossing.  In  this  par- 
ticular case,  however,  the  notice  further 
points  out  the  place  by  saying  "that  there 
was  a  defect  in  the  crossing  at  said  point 
by  the  plank  being  placed  so  far  apart,  or 
from  some  other  defect  to  this  subscriber  un- 
known, that  she  stepped  through  the  said 
plank,  or  said  plank  gave  way  imder  her,  in 
whole  or  in  part,  inflicting  the  injuries  com- 
plained of."  Now,  it  seems  to  be  undisputed 
that  the  plaintiff  was  injured  by  stepping 
between  planks  which  were  originally  laid 
about  a  foot  apart  over  a  ditch  along  the 
southeast  corner  of  block  11.  on  Locust  street, 
which  was  about  2^4  feet  deep.  There  was 
no  evidence  in  the  case  to  show  that  there 
was  any  other  crossing  over  Locust  street  at 
or  near  this  point,  or  that  there  was  any 
other  constructed  as  this  one  was  with 
planks  laid  as  before  stated.  The  object  of 
the  notice  is  that  the  city  authorities  may  in- 
vestigate the  question  of  the  defendant's 
liability  while  the  facts  are  fresh,  and  the 
evidence  is  attainable;  and  reasonable  cer- 
tainty as  to  the  place  and  circumstances  of 
the  injury  is  all  that  is  required.  It  is  not 
intended  that  the  claimant  shall  state  the 
exact  spot  where  the  accident  happened,  and 
a  mistake  of  a  few  feet  ought  not  to  defeat 
the  action.  In  this  case  the  mistake,  if  there 
was  one,  was  ot  less  than  an  hundred  feet. 
The  notice,  as  a  whole,  indicated  that  the 
place  of  the  accident  was  at  the  intersection 
of  Locust  and  Cass  streets.  It  pointed  out 
the  side  of  the  street  upon  which  it  was  to 
be  found,  and  specified  the  defect  which  ex- 
isted in  the  crossing.  The  evidence  shows 
that  there  is  no  plank  crossing  on  the  south 
side  of  Locust  street,  nor  from  the  west  side 
to  the  east  side,  nor  at  any  of  the  four  cor- 
ners of  Cass  and  Locust  streets,  except  at 
the  southeast  corner  of  block  11.  It  seems 
to  us  that  no  one  with  that  notice  in  his 
hand,    looking    for    the   place,    and    passing 


t   to  I 
Ourf 

[vinp'  I 


along  the  west  side  of  Cass  street  at  or  near 
its    intersection    with    Locust,    would    have 
failed  to  see  and  known  the  place  where  the 
accident  is  said  to  have  occurred.     Where  ' 
the  notice  conveys  the  necessary  information  i 
to  the  proper  officers,  it  is  good,  even  though  i 
there  are  some  inaccuracies  in  it.     The  de-l 
fendant  could  not  have  been,  and  was  not  in  « 
fact,  misled.    The  attention  of  the  mayor  of  / 
the  city  was  called  to  the  exact  place  of  the 
accident  within  three  days  after  it  happened,  ] 
and  the  particular  defect  was  pointed  out  ' 
to  him.    The  testimony  relied  upon  to  prove 
the  mayors  knowledge  of  the  place  was  ob-  / 
jected  to,  but  we  think  it  was  proper;    not  I 
perhaps   to    supplement    the    notice,    but   to 
show   that   the   city   was   not  misled 
conclusions    find    support    in    the    following 
cases:    Fopper  v.  Town  of  Wheatland  (Wis.) 
IS  N.  W.  .514;   Wall  v.  Town  of  Plighland  (Wis.) 
39  N.  W.  5G0;  Salladay  v.  Town  of  Dodgeville 
(Wis.)  5.5  N.  W.  69G;   Laird  v.  Town  of  Otsego 
(Wis.)  62  N.  W.   1042;    Fassett  v.  Town   of 
Roxbury,    55    Vt    552;     Brown   v.    Town   of 
Southbury  (Conn.)  1  Atl.  819;  Chapman  v.  In- 
habitants of  Nobleboro,  76  Me.  427;    Fortin 
V.    Inhabitants    of    Easthampton    (Mass.)    8 
N.  E.  328.     The  lower  court  instructed  the 
jury  as  a  matter  of  law  that  the  notice  was 
sufficient     This  is  said  to  be  error — First,  be- 
cause the  notice  was  not  sufficient;  and,  sec- 
ond, because  the  question  was  for  the  jury, 
and  not  for  the  court.     We  have  already  dis- 
posed of  the  first  objection.     As  to  the  sec- 
ond, we  may  say  that,  while  it  may  not  al- 
ways be  true  that  the  question  is  for  the 
court,  yet  such  is  the  general  rule.     And  in 
this  particular  instance,  the  facts  being  un- 
disputed,  the  question   was   properly  deter- 
mined by  the  court,     Rogers  v.  Inhabitants 
of    Shirley,    74    Me.    144;     Chapman    v.    In- 
habitants of  Nobleboro,  supra. 

2.  At  the  conclusion  of  plaintiff's  evidence 
defendant  moved  to  strike  out  the  same,  be- 
cause it  was  not  addressed  to  the  place  nam- 
ed in  the  preliminary  notice.  This  motion 
was  overruled,  and  defendant  thereupon  filed 
a  motion  for  a  continuance,  based  upon  the 
ground  that  it  had  not  investigated  any  place 
other  than  that  named  in  the  notice.  This 
last  motion  was  overnded,  and  exception  tak- 
en, and  the  ruling  is  now  assigned  as  error. 
We  think  it  was  correct.  What  is  said  in  the 
first  paragraph  of  this  opinion  is  a  sufficient 
answer  to  the  argument  of  counsel  on  this 
branch  of  the  case. 

3.  Certain  of  the  Instructions  given  by  the 
court  are  complained  of,  and  it  is  also  argued 
that  the  court  was  in  eiTor  in  refusing  certain 
of  those  asked  by  the  defendant.     These  in- 
structions relate  almost  wholly  to  the  amount 
of  care  required  of  plaintiff  in  going  onto  and 
passing  over  the  crossing.      We   cannot  set 
them   out  in  full.     The  court  said,   in   sub-  ) 
stance,  that  plaintiff  could  not  recover  unless  I 
she  established   her  freedom  fi'om  contribu-  > 
tory  neglig  -nee;    that  she  was  not  bound  to  | 
keep  her  eyes  constantly  on  the  walk  before 


CONTRIBUTORY  NEGLIGENCE  OF  PERSON  INJURED. 


3G1 


1  her,  but  might  roly  upon  the  city  to  exercise 
[ordinary  and  roasonable  care  to  keep  the 
'  place  in  repair,  but  tliat  it  was  her  duty  to 
I  remember  that,  notwithstanding  the  most  ef- 
ficient supervision,  yet  defects  and  obstruc- 
tions will  appear  in  and  upon  sidewallcs,  and 
I  that  it  was  her  duty  to  use  ordinary  care  in 
\  passing  over  the  walks;  that  she  had  the 
right  to  travel  upon  the  street  and  over  the 
crossing,  and  that  her  care  or  negligence  de- 
pended upon  her  conduct  at  or  near  the  time 
and  place  of  her  fall.  The  instructions  asked 
by  defendant  were  to  the  effect  that  plaintiff 
was,  as  a  matter  of  law,  bound  to  discover 
defects  ascertainable  by  the  senses,  and  was 
guilty  of  contributory  negligence,  because  she 
might  have  se^n  or  discovered  the  alleged  de- 
fect, or  might  have  taken  another  walk  to 
reach  her  destination.  We  thin]<,  as  applied 
to  the  facts  in  tliis  case,  the  court  correctly 
instructed  the  jurj.  The  accident  happened 
,  after  dark,  and  there  was  nothing  to  show 
that  plaintiff  was  familiar  with  the  condition 
of  the  crossing,  or  with  the  dangers  attending 
an  attempt  to  cross  it.  She  was  not  bound, 
,  at  her  i:>eril,  to  discover  the  defect.  Ordinary 
and  reasonable  care  and  prudence  was  all 
that  was  required  of  her,  and  unless  she 
knew  it  was  imprudent  to  pass  over  the  walk 
she  was  not  required  to  take  another  route. 
Whether  she  exercised  reasonable  care  and 
prudence  was  a  question  for  the  jury.  We 
have  recently  had  occasion  to  re-examine  the 
question  here  presented,  and  will  content  our- 
selves by  citing  the  cases,  where  the  whole 
matter  is  fully  considered:  Mathews  v.  City 
of  Cedar  Rapids,  80  Iowa,  460,  45  N.  W.  S94: 
Lichtenberger  v.  Incorporated  Town  of  Meri- 


den  (Iowa)  58  N.  W.  10.58;    Barnes  v.  Town 
of  Marcus  (Iowa)  G5  N.  W.  335. 

4.  Other  instnictions  with  reference  to  de- 
fendant's negligence  were  asked  and  refused. 
In  so  far  as  they  embodied  correct  ndes  of 
law,  they  were  given  in  substance  by  the 
court  in  its  charge  to  the  jury. 

5.  Witness  Tabor  was  allowed  to  testify 
that  he  saw  one  of  the  defendant's  city  alder- 
men at  the  place  of  the  alleged  accident  some 
months  before  plaintiff  received  her  injury. 
and  that  he  had  some  conversation  with  him 
in  reference  to  the  condition  of  the  crossing. 
This  testimony  was  for  the  purpose  of  show- 
ing actual  notice  to  the  city  of  the  condition 
of  the  walk  through  a  member  of  its  city 
council.  It  is  contended  by  appellant  that 
this  was  error,  for  the  reason  that  notice  to 
such  an  officer  Is  not  notice  to  the  city,  be- 
cause it  is  not  shown  that  he  had  any  duty 
to  perform  with  reference  to  the  sidewalk  or 
crossings.  We  have  heretofore  had  occasion 
to  consider  this  question,  and  in  the  cases  of 
Carter  v.  Town  of  Monticello,  G8  Iowa,  179, 
26  N.  W.  129,  and  Trapnell  v.  City  of  Red 
Oak  Junction,  76  Iowa,  744,  39  N.  W.  884,  we 
announced  that  notice  to  such  an  officer  was 
binding  upon  the  municipality.  These  cases 
are  decisive  of  the  question  presented. 

Some  other  points  are  discussed  by  counsel, 
but  what  we  have  said  disposes  of  every 
question  of  any  moment  in  the  case.  We 
have  not  considered  the  affidavits  filed  by  the 
respective  parties,  for  the  reason  that,  shouM 
we  find  appellant's  contention  true,  it  would 
not  change  the  result.  There  is  no  prejudi- 
cial error  in  the  record,  and  the  judgment  is 
affirmed. 


362 


CONTRIBUTORY  NEGLIGENCE  OF  PERSON  INJURED. 


MULLEN  V.  CITY  OF  OWOSSO. 

(58  N.  W.  663,  100  Mich.  103.) 

Supreme  Court  of  Michigan.     April  17,  1894. 

Error  to  circuit  court,  Shiawassee  county; 
William  Newton,  Judge. 

Action  by  Mary  E.  Mullen  against  the  city 
of  Owosso  for  personal  injui'ies. 

From  a  judgment  for  defendant,  plaintiff 
brings  error.    Affirmed. 

George  L.  Keeler  (John  T.  McCurdy,  of 
counsel),  for  appellant  Odell  Chapman,  for 
appellee. 

LONG,  J.  The  plaintiff,  a  woman  about 
34  years  of  age,  was  riding  with  Mr.  Pond 
in  a  private  carriage  di-awn  by  one  horse 
along  a  public  street  in  the  city  of  Owosso. 
Overtaking  Mr.  Sanders,  who  was  driving 
in  the  same  direction,  Mr.  Pond  attempted  to 
pass  him.  Sanders  was  driving  at  a  rapid 
rate,  and  Mr.  Pond,  in  attempting  to  pass, 
started  his  horse  rapidly  forward.  The  par- 
ties raced  for  a  distance,  when  Mr.  Pond  ran 
over  a  pile  of  sand  in  the  highway.  His  car- 
riage was  overtm-ned,  and  plaintiff  thrown  out 
and  injm-ed.  The  proofs  are  clear  that  Mr. 
Pond  knew  that  a  building  was  being  erect- 
ed by  the  side  of  this  street,  and  that  a 
mortar  box  and  other  materials  were  out  in 
the  street,  in  front  of  it.  He  stated  that  on 
a  former  trial  he  testified  that  he  knew  the 
street  was  incumbered  by  such  materials, 
and  thought  that  somebody  was  liable  to  get 
hiu-t  there.  Yet,  in  view  of  this  Icnowledge, 
he  carelessly  drove  his  horse  at  the  rate  of 
more  than  six  miles  an  hoiu:  in  tbe  sti'eet, 
contrary  to  the  ordinances  of  the  city.  The 
court  directed  the  jury:  "If  you  find  from 
the  evidence  in  this  case  that  the  plaintiff 
would  not  have  been  injured  but  for  the 
neglect  of  the  city  to  give  proper  warning, 
then  the  plaintiff  would  be  entitled  to  re- 
cover, unless  you  find  that  Mr.  Pond  knew 
of  the  obstruction  to  a  portion  of  this  street, 
and  heedlessly  drove  over  the  obstruction; 
then  he  would  be  guilty  of  gi'oss  negligence, 
and  plaintiff  could  not  recover."  Again  the 
court  said:  "If  the  plaintiff  in  this  case 
voluntarily  entered  the  private  conveyance 
of  Mr.  Pond,  and  voluntarily  triisted  her  per- 
son and  safety,  in  that  conveyance,  to  him, 
by  voluntarily  entering  into  the  private  con- 
veyance of  Mr.  Pond,  she  adopted  the  con- 
veyance, for  the  time  being,  as  her  own,  and 
assumed  the  risk  of  the  skill  and  care  of  the 
person  guiding  it.  So,  if  you  find  that  ISIr. 
Pond  was  negligent,  in  driving  fast,  the 
plaintiff  could  not  recover."  The  jiu-y  re- 
turned a  verdict  in  favor  of  the  defendant. 

The  only  question  presented  by  the  brief 
,'  of  plaintiff's  coimsel  is  whether  the  negli- 
gence of  Mr.  Pond  is  imputable  to  the  plain- 
tiff. This  question  was  settled  in  the  af- 
firmative in  Railroad  Co.  v.  :Millor,  25  Mich. 
274  (decided  by  this  court  in  1S72),  and  has 
not  since'  been  departed  from.  Counsel 
claims  that  some  doubt  has  been  cast  upon 


this  doctrine  by  some  of  the  later  decisions, 
and  cites  Battishill  v.  Humphreys,  64  Mich. 
503,   31   N.   W.   894.    In  that  case  a   child 
three  years  of  age  was  run  over  by  an  en- 
gine upon  a  raih-oad  operated  by  defendant, 
as  receiver.     The  question  was  raised  wheth- 
er the  negligence  of  the  parents  in  permit- 
ting the  child  to  go  upon  the  track  was  im- 
putable to  the  child.     Iklr.  Justice  Morse  held 
that  such  negligence  was  not  imputable  to 
the  child.    The  other  justices  expressed  no 
opinion  upon  that  point.     In  Shippy  v.  "Vil- 
lage of  Au  Sable,  85  Mich.  280,  48  N.  W.  584, 
the  question  whether  the  negligence  of  the 
parents  was  imputable  to  a  child  three  yeai-s 
of  age  was  again  presented;    and,  upon  a 
fuU  hearing,  it  was  the  unanimous  opinion 
of  the  com"t  that  such  negligence  was  not 
imputable  to  the  child.     Other  cases  of  like 
character  have  been  presented  to  this  court, 
involving  that  question;   and  the  rule  is  now 
established  that,  when  the  child  brings  the 
action  for  negligent  injm'ies,  the  negligence 
of    the   parents   cannot   be    imputed    to    it. 
But  the  present  case  presents  quite  a  differ-  ^ 
ent  question.     Here  a  person  of  the  age  of  i 
discretion  voluntarily  enters  a  private   con-  i 
veyance  of  another,  to  ride,  and  by  the  care-  ' 
lessness  of  that  person  is  injured.     The  rule  ' 
laid  down  in  the  Miller  Case,  cited  above,  I 
excludes  a  recovery.     It  has  been  too  long  1 
settled  to  be  now  distm-bed.     In  Schindler  v. ' 
Railway  Co.,  87  Mich.  410,  49  N.  W.  670,  the 
rule  was  recognized.     It  was  there  said  of| 
the  Miller  Case:    "This  is  the  general  rule,/ 
and  has  since  been  followed  in  this  state."] 
The  rule  was  also  recognized  by  this  court 
in  Cowan  v.  Railway  Co.,  84  Mich.  583,  48 
N.  W.  166.    Judgment  is  affirmed. 

GRANT  and  MONTGOMERY,  JJ.,  concm*- 
red  with  LONG,  J. 

HOOKER,  J.  (dissenting).  The  plaintiff 
was  riding  in  a  carriage,  with,  and  upon 
the  invitation  of,  a  Mr.  Pond,  in  the  city 
of  Owosso.  In  attempting  to  pass  another 
vehicle,  the  carriage  was  overturned,  by 
reason  of  its  being  driven  upon  a  pile  of 
sand  or  rubbish  in  the  street,  and  plaintiff 
was  injured.  The  defense  is  made  that  the 
driver,  Mr.  Pond,  was  negligent,  and  that 
such  negligence  should  be  imputed  to  the 
plaintiff.  The  cases  are  not  harmonious 
upon  this  question,  but  the  great  weight  of 
authority  is  against  the  defendant's  conten- 
tion; the  case  of  Thorogood  v.  Brjan  (de- 
cided in  1849)  8  C.  B.  115,  which  is  consid- 
ered the  leading  case  sustaining  the  defend- 
ant's proposition,  having  been  overruled  in 
England,  and  repudiated  in  this  country, 
generally,  though  followed  in  some  states. 
That  was  a  case  of  the  collision  of  two 
omnibuses.  The  action  against  the  owner 
of  one  by  a  passenger  of  the  other  was  de- 
feated upon  the  ground  of  contributory  neg- 
ligence, upon  the  theory  that  the  passenger 
was  so  identified  with  the  driver  of  his 
vehicle  as  to  be  chargeable  with  his  neg- 


CONTEIBUTOllY  NEGLIGEXCE  OF  TERSOX  INJURED. 


sea 


ligence.  This  decision  seems  to  rest  upon 
an  inference  that  the  driver  is  the  agent 
of  the  passenger,  or  at  least  that  he  is  under 
the  direction  and  control  of  tlie  passenger. 
The  case  was  disregarded  in  Kigby  v.  Hew- 
itt, 5  Exch.  239,  and  distinctly  overruled  in 
The  Bernina,  12  Prob.  Div.  58;  Mills  v.  Arm- 
strong, 13  App.  Cas.  1.  In  the  last  case, 
Lord  Herschell  commented  as  follows  upon 
the  case  of  Thorogood  v.  Bryan:  "In  short, 
as  far  as  I  can  see,  the  identification  ap- 
pears to  be  effective  only  to  the  extent  of 
enabling  another  person,  whose  servants 
have  been  guilty  of  negligence,  to  defend 
himself  by  the  allegation  of  contributory  neg- 
ligence on  the  part  of  the  person  injiu'ed. 
But  the  very  question  that  had  to  be  deter- 
mined was  whether  the  contributory  neg- 
ligence of  the  driver  of  the  vehicle  was  a 
defense,  as  against  the  passenger,  when 
suing  another  wrongdoer.  To  say  that  it  is 
a  defense,  because  the  passenger  is  identi- 
fied with  the  driver  appears  to  me  to  beg 
the  question,  when  it  is  not  suggested  that 
this  identification  results  from  any  recog- 
nized principles  of  law,  or  has  any  other 
effect  than  to  furnish  that  defense,  the  valid- 
ity of  which  was  the  very  point  in  issue." 
In  Little  v.  Hackett,  116  U.  S.  366,  6  Sup.  Ct. 
391,  Mr.  Justice  Field  uses  the  following 
language:  "The  truth  is,  the  decision  of 
Thorogood  v.  Bryan,  rests  upon  indefensible 
grounds.  The  identification  of  the  passenger 
with  the  negligent  driver  or  the  owner, 
without  his  co-operation  or  encomia gement, 
is  a  gratuitous  assumption.  There  is  no  such 
identity.  The  parties  are  not  in  the  same 
position.  The  owner  of  a  public  conveyance 
is  a  carrier,  and  the  driver,  or  the  person 
managing  it,  is  his  servant.  Neither  of  them 
is  the  servant  of  the  passenger,  and  his  as- 
serted identity  with  them  is  contradicted 
by  the  daily  experience  of  the  world."  The 
doctrine  of  Thorogood  v.  Bryan  has  met 
with  similar  treatment  in  most  of  the  state 
coiarts  of  last  resort,  and,  as  to  public  con- 
veyances, may  be  said  not  to  state  the  law 
correctly.  The  reasons  upon  which  these 
cases  rest  are  equally  conclusive  in  cases 
where  liie  injured  party  was  riding  in  a 
hired  carriage  with  a  driver  from  a  livery 
stable;  in  cases  where  the  passenger  does 
not,  as  a  matter  of  fact,  exercise  such  con- 
trol over  the  driver  as  to  make  him  his  serv- 
ant. See  Little  v.  Hackett,  supra.  Missouri 
Pac.  Ky.  Co.  v.  Texas  Pac.  Ry.  Co.,  41  Fed. 
316;  Larkin  v.  Railway  Co.  (Iowa)  52  N. 
W.  480;  Railroad  Co.  v.  Steibrenner,  47  N. 
J,  Law,  161;  Randolph  v.  O'Riorden  (Mass.) 
29  N.  E.  583.  In  cases  like  the  present  the 
question  becomes  one  of  fact;  the  test  of 
the  passenger's  responsibility  for  the  neg- 
ligence of  the  driver  depending  upon  the 
passenger's  control,  or  right  of  control,  of 
the  driver,  so  as  to  constitute  the  relation 
of  master  and  servant  between  them.  Rail- 
way Co.  V.  Kutac,  72  Tex.  643,  11  S.  W.  127; 
Cahill  V.  Railway  Co.  avy.)  18  S.  W.  2;  Nes- 
bit  V.  Town  of  Garner,  75  Iowa,  314,  39  N. 


W.  516;  Dean  v.  Railroad  Co.,  129  Pa.  St 
514,  IS  Atl.  718;  McCaffrey  v.  President,  etc. 
(Sup.)  16  N.  Y.  Supp.  495;  Masterson  v.  Rail- 
road Co.,  84  N.  Y.  247;  Noyes  v.  Boscawen, 
64  N.  H.  361,  10  Atl.  690;  Follman  v.  City  of 
Mankato,  35  Minn.  522,  29  N.  W.  317;  Rail- 
road Co.  V.  Hogeland,  66  Md.  149,  7  Atl.  105; 
State  V.  Boston  &  M.  R.  Co.,  80  Me.  430,  15 
Atl.  36;  Town  of  Knightstown  v.  Musgrove, 
116  Ind.  121,  18  N.  E.  452;  Railroad  Co.  v. 
Spilker  (Ind.  Sup.)  33  N.  E.  280.  It  should 
not  be  inferred  that  a  passenger  can  shelter 
himself  behind  the  fact  that  another  is  driv- 
ing the  vehicle  in  which  he  rides,  and  re- 
lieve himself  from  his  own  personal  neg- 
ligence. What  degree  of  care  should  be  re- 
quired in  the  selection  of  a  driver,  or  in 
observing  and  calling  attention  to  dangers 
xmnoticcd  by  the  driver,  must  depend  upon 
the  circumstances  of  each  case. 

It  remains  to  inquire  whether  this  ques- 
tion can  be  considered  an  open  one  in  this 
state.  The  question  before  us  is  doubtless 
supposed  by  many  to  have  been  settled  in 
the  case  of  Railroad  v.  Miller,  25  Mich.  274, 
and  it  cannot  be  denied  that  the  syllabus  of 
that  case  would  confirm  the  opinion.  The 
facts  in  that  case  were  these:  The  plaintiff, 
a  woman,  was  riding  with  Eldridge,  being  in 
his  employ.  The  wagon  was  sti-uck  upon  a 
railway  .crossing,  near  which  was  a  wood 
pile  belonging  to  the  defendant,  which  ob- 
scured the  view  of  the  railroad.  The  only 
allusion  to  the  question  here  discussed  arose 
as  follows:  The  court  said:  "So  that  the 
only  negligence  which  can  be  claimed  in  the 
mode  of  running  the  train  must  rest  upon 
the  gi'ound  that  the  company,  having  obscm-- 
ed  the  view  and  deadened  the  sound  of  the 
approaching  train  by  the  mode  of  piling 
their  wood,  were  bound,  for  that  reason,  to 
run  at  much  less  than  their  usual  rate  of 
speed,  in  approaching  that  crossing,  or  to 
keep  a  flagman  there,  or  use  some  other 
extra  means  to  warn  people  traveling  the 
highway  of  the  approach  of  trains  from  the 
west.  The  materiality  of  this  question  must 
depend  upon  another,— whether  the  plain- 
tiff's own  negligenc-e,  or  thai  of  Eldridge, 
who  was  driving  the  team,  contributed  to 
the  injiu-y.  within  the  meaning  of  the  gen- 
erally settled  rule  upon  this  subject;  for, 
as  she  was  riding  with  Eldridge,  tie  owner 
and  driver  of  the  team,  any  negligence  of 
Eldridge  equally  affects  her  rights  in  this 
suit,  as  was  properly  held  by  the  coiu-t." 
It  will  be  noticed  that  the  subject  is  passed 
without  discussion,  and  the  court  proceeds 
with  a  lengthy  review  of  the  doctrine  of  con- 
tributory and  comparative  negligence.  On 
page  286  the  court  states  the  established 
facts,  among  which  are  the  following:  "Eld- 
ridge was  slightly  deaf,  but  the  plaintiff  her- 
self was  not."  "They  kept  on,  still  upon 
the  walk  (the  train  in  sight),  not  stopping 
to  listen,  and  looking  neither  to  the  right  nor 
the  left,  neither  up  nor  down  the  track. 
They  are  almost  upon  it.  He  (the  witness) 
still  thinks  they  will  stop,   but  they  mov» 


364 


CONTRIBUTORY  NEGLIGENCE  OF  PERSON  INJURED. 


steadily  on,"  etc.  Again:  "No  logic  can  find 
in  it,  or  extract  from  it  [the  evidence],  the 
faintest  manifestation  of  common  prudence, 
which  the  circumstances  demanded,  in  ap- 
proaching the  crossing."  The  coiu't  finds 
from  the  testimony  of  the  plaintiff  herself 
that  neither  Eldridge  nor  herself  used  any 
caution  whatever.  One  of  two  things  mu.st 
be  admitted,  under  the  facts  stated,  viz.  (1) 
that  plaintiff  was  relieved  from  all  responsi- 
bility by  the  fact  that  she  was  riding  with 
Eldridge,  and  was  imder  no  obligation  to 
look  for  the  train;  or  (2)  that  the  failure  to 
do  so  was  contributory  negligence  upon  her 
part,  which  should  have  precluded  a  recov- 
ery by  her,  in  which  case  the  question  of  im- 
puted negligence  was  unimportant.  The 
opinion  apparently  takes  the  latter  view,  so 
far  as  plaintiff's  own  negligence  is  concern- 
ed, where  it  says,  "I  think  the  evidence  tend- 
ed affirmatively  to  prove  actual  and  gross 
negligence  on  their  part,  which  contributed  di- 
rectly to  produce  the  injury  complained  of." 
From  the  finding,  I  think  it  may  be  said  that 
the  question  before  ug  was  not  necessarily 
involved  in  the  Miller  Case,  and  that  it  was 
not  considered  the  controlling  point.  If  it  is 
to  be  treated  as  conclusive,  against  the  over- 
whelming weight  of  authority  in  the  United 
States  and  I'^ngland,  we  shall  apparently  ac- 
cept an  incidental  remark  in  an  opinion  as 
decisive  upon  an  important  principle,  which 
deserved  a  full  discussion  before  being  set- 
tled. An  examination  will  show  that  this 
decision  has  never  since  been  applied,  be- 
yond a  recognition  of  the  doctrine  in  cases 
where  it  was  not  involved  in  the  decision. 
It  was  mentioned  and  recognized  in  Cuddy 
V.  Horn  (Mich.)  10  N.  W.  32,  but  the  court 


disposed  of  the  case  upon  the  ground  that 
the  passenger  iipon  a  yacht  had  not  control 
of  the  management.  In  Schindler  v.  Rail- 
way Co.,  87  Mich.  411,  49  N.  AV.  670,  the 
com't  again  recognized  the  rule;  saying  that 
it  was  settled  in  Railway  Co.  v.  Miller,  but 
that  it  did  not  apply,  because  the  defend- 
ant was  guilty  of  wantonness.  The  platn- 
tiiT  was  a  child  riding  with  a  neighbor.  Mr. 
Justice  Champlin,  in  a  dissenting  opinion, 
protested  against  the  doctrine.  87  Mich. 
419,  49  N.  W.  670.  In  Battishill  v.  Hum- 
phreys, 64  Mich.  509,  31  N.  W.  894,  Mr.  Jus- 
tice Morse  uses  the  following  language:  "I 
am  not  content  to  let  the  question  pass  as  a 
settled  one  in  this  state.  At  least,  I  am  not 
willing  to  assent  to  the  proposition  that  the 
negligence  of  any  other  person  can  become 
the  contributory  negligence  of  a  plaintiff, 
without  his  fault.  64  Mich.  508,  31  N.  W. 
894.  In  the  case  of  Shippy  v.  Village  of  Au 
Fable,  85  Mich.  292.  48  N.  W.  584,  Mr.  Jus- 
tice Morse  expressed  satisfaction  with  his 
views  in  the  Battishill  Case,  and  added,  "I 
am  also  satisfied  that  the  great  weight  of  au- 
thority in  this  country  is  opposed  to  the  con- 
tention of  the  defendants."  In  neither  of 
these  cases,  was  the  docti-ine  of  Railway  Co. 
V.  Miller  r.;  plied.  It  seems,  therefore,  that 
the  authority  of  the  case  of  Railway  Co.  v. 
Miller  has  been  repeatedly  questioned.  The 
time  has  arrived  when  the  question  must  be 
settled.  I  think  it  should  be  in  conformity 
to  the  weight  of  authority,  and  the  better 
rule.  The  judgment  should  be  reversed,  and 
a  new  ti-ial  ordered. 

McGRATH,  C.  J.,  concurred  with  HOOK- 
ER, J. 


CONTKIBUTORY  NEGLIGEXCE  OF  PERSON  INJURED. 


365 


MALOY  V.  CITY  OF  ST.  PAUL. 

(56  N.  W.  94,  54  Minn.  398.) 

Snprome  Court  of  ^linncsotii.     Aug.   17,   1893. 

Appeal  from  district  court,  Ramsoy  coun- 
ty;   Cornish,  Judge. 

Action  for  personal  injuiies  by  Winnie 
Mnloy  against  the  city  of  St.  Paul.  Plain- 
tiff had  judgment,  and,  from  an  order  grant- 
ing a  new  trial,  she  appeals.     Revereed. 

"Williams,  Goodenow  &  Stanton,  and  D.  Ed. 
Dwyor,  for  appellant  L.  T.  Chamberlain 
and  II.  W.  Phillips,  for  respondent. 

COLLINS,  J.  Plaintiff  brought  this  action 
to  recover  for  pei-sonal  injuries  caused  by  a 
defective  sidewalk,  and  obtained  a  verdict, 
which  Avas  set  aside,  and  a  new  trial  or- 
dered, on  motion  of  dofeudnnt  city.  The 
facts  were  not  in  dispute.  The  diefect  was 
in  tlio  walk  in  front  of  the  lot  on  which 
plaintiff  resided  with  her  husband,  and  close 
by  tlieir  dwelling.  The  pl:inl<s  in  the  walk 
at  this  particidar  point  had  been  laid  length- 
wise, and  one  had  been  broken  down,  so  tliat 
tliere  was  a  hole  aljout  18  inches  long  and 
about  6  inches  in  width,  at  the  widest  place. 
The  walk  had  been  laid  6  inclies  above  the 
surface  of  the  ground.  It  had  been  in  this 
defective  condition  for  more  tlian  tliree 
montlis,  and  plaintiff  had  known  of  tliis  all 
of  the  time.  She  had  passed  by  this  break 
or  hole  daily  for  more  than  two  months 
prior  to  the  evening  of  this  accident,  care- 
fully avoiding  the  dangerous  place.  When 
the  accident  occuiTed,  there  was  a  light 
snow  upon  the  walk,  partly  filling  the  hole, 
and  the  snow  was  still  falling.  About  dark, 
plaintiff,  who  was  .50  yeai*s  of  age,  having 
occasion  to  go  to  a  neighbor's,  went  out  on 
the  walk,  and,  stepping  into  the  hole,  was 
tlirown  down,  thus  receiving  the  injuries 
complained  of.  She  testified  that  the  fall- 
ing snow  was  blown  into  her  eyes  so  that 
lier  vision  was  obstnicted,  and  also  that  she 
did  not  think  of  the  defect  as  she  walked 
along.  It  did  not  appear  from  the  testi- 
mony  that  there  was  anything   to  distract 


her  attention,  and,  becaase  tliere  was  noth- 
ing justifying  or  excusing  inattention  to  the 
weU-known  condition  of  the  walk,  the  court 
below  ordered  a  new  trial. 

In  accordance  with  tlie  prevailing  rule  \ 
eveiy where,  it  has  again  and  again  been 
held  by  tliis  court  that  previous  knowledge 
of  the  condition  of  a  street  or  sidewalk  is 
not  conclusive  evidence  of  contributoiy  neg- 
ligence, so  as  to  bar  a  recovery  by  a  pei"son 
injured  in  consequence  of  its  being  out  of  / 
repair;  and  the  cases  were  collated  very  / 
recently  in  Wright  v.  City  of  St.  Cloud, 
(Minn.)  55  N.  W.  Rep.  820,  in  which  a  recov- 
ery was  denied  because  it  was  apparent 
from  plaintiff's  own  testimony  that  she  had 
full  and  present  knowlelge  of  the  exact  con- 
dition of  the  walk,  and  the  risk  incident  to 
traveling  upon  it,  could  easily  have  avoid- 
ed it,  and  simply  overestimated  her  own 
ability  to  go  across,  in  broad  daj-hght,  with- 
oiit  falling.  On  the  facts  tlie  case  at  bar 
is  not  analogous.  The  defect  here  was  not 
such  as  would  or  should  have  turned  the 
prudent  traveler  off  from  the  walk  to  seek 
a  better  route.  The  accident  happened  in 
the  evening,  when  the  snow  was  falling, 
blowing,  and  to  some  extent  obscuring  tlie 
vision  of  the  plaintiff,  and  filling  the  hole  in 
the  walk.  Although  advised  of  the  defect,  ' 
she  did  not  have  it  presently  in  mind.  Nor 
is  it  necesi^ary  that  the  thoughts  of  a  travel- 
er .should  be  at  all  times  fixed  upon  defects 
in  the  street  or  sidewalk,  of  which  he  may/ 
have  notice.  George  v.  Haverhill.  110  Ma.ss. 
506;  Barton  v.  City  of  Springfield,  Id.  131. 
It  is  certain  that  previous  knowledge  of  the 
existence  of  a  defect  has  an  important,  and 
oftentimes  a  decisive,  bearing  upon  the  ques- 
tion of  contributory  negligence;  but  mere  in- 
attention to  a  known  danger,  on  the  part  of 
this  plaintiff,  cannot  be  held  to  conclude  her. 
Of  the  Mimiesota  ca.ses  before  referred  to, 
that  of  Estelle  v.  Village  of  Lake  Ciystal, 
27  Minn.  243,  6  N,  W.  Rep.  775,  is,  on  the 
facts,  as  they  appeared  in  the  record, — al- 
though not  veiy  fully  stated  in  the  opin- 
ion,—more  in  point  than  any  otlier. 

Order  reversed. 


565 


COi^TRIBUTOliY  XEGLIGEJTCE  OF  PERSON  LN^JURED. 


GEURKINK  et  al.  v.  CITY  OF  PETALU3IA 
et  al.     (S.  F.  250.) 

(44  Pac.  570,  112  Cal.  306.) 

Supreme  Court  of  California.     April  7,  1896. 

Department  1.  Appeal  from  superior  court, 
Sorroma  county;    R,  F.  Crawford,  Judge. 

Action  by  B.  W.  Geurkink  and  another 
against  the  city  of  Petaluma  and  others. 
From  a  judgment  for  defendants,  and  an  or- 
der denying  a  new  trial,  plaintiffs  appeaL 
Reversed. 

Lippitt  &  Lippitt,  for  appellants.  J.  P. 
Rogers  (W.  B.  Haskell,  of  counsel),  for  re- 
spondents. 

GAROUTTE,  J.  This  Is  an  action  for  a 
permanent  injunction  against  the  city  of  Pet- 
aluma, brought  by  two  owners  of  lots  abut- 
ting upon  Eighth  and  G  streets  of  that  city, 
respectively.  Relief  was  denied  them  in  the 
trial  court,  and  this  appeal  comes  to  us  from 
the  judgment,  and  also  from  an  order  deny- 
ing a  motion  for  a  new  trial. 

The  facts  material  to  a  consideration  of 
this  question  may  be  succinctly  stated  as  fol- 
lows: Edwards  creek  has  been  from  time 
Immemorial  a  natural  water  channel  passing 
over  Eighth  street,  and  thence  across  the  city 
to  tide  water.  Some  few  years  past  the  city 
blocked  the  channel  of  this  stream  where  it 
crossed  Eighth  street,  and  attempted  to  take 
care  of  its  waters  by  a  sewer  leading  from 
this  point  down  F  street.  During  heavy 
rains  this  sewer  proved  entirely  inadequate 
to  carry  the  waters  coming  from  the  moun- 
tains via  the  stream,  and  F  street  was  flood- 
ed as  the  result,  the  natural  fall  of  the  land 
tending  that  way.  The  plaintiffs'  property 
was  situated  a  block  or  more  distant  and 
east  from  the  point  of  obstruction;  Geur- 
kink's  lot  being  upon  Eighth  street,  and  fa- 
cing north,  and  the  lot  of  his  co-plaintiff 
facing  east  upon  G  street.  The  land  cov- 
ered by  Eighth  street  between  P  and  G 
streets  was  higher  than  at  the  point  where 
the  sewer  connected  with  the  stream,  and,  if 
any  water  ever  did  pass  over  Eighth  street 
to  G  street  prior  to  the  time  when  the  work 
of  the  city  here  complained  of  was  inaugu- 
rated, the  amount  was  slight;  for,  as  we 
have  seen,  the  lay  of  the  land  forced  it  nox'th 
down  F  street.  Under  the  conditions  just 
stated  the  city  of  Petaluma,  by  its  board  of 
trustees,  adopted  a  scheme  to  take  care  of 
the  waters  coming  from  this  creek  which 
could  not  be  carried  away  by  the  aforesaid 
sewer.  This  scheme  included  the  enlarge- 
ment of  a  culvert  at  F  and  Eighth  streets, 
the  digging  of  a  large  gutter  or  channel  up- 
on the  south  side  of  Eighth  street  to  G  street, 
a  culvert  across  Eighth  street  at  this  point, 
and  a  gntter  channel  down  G  street  upon  the 
west  side  thereof  to  Seventh  street.  The 
woric  mapped  out  by  this  scheme  was  in  ac- 
tive operation  when  the  plaintiffs  began  the 
present  litigation,  and  a  temporary  restrain- 
ing order  was  issued.      These  facts  cannot 


be  disputed  by  the  record,  and  neither  can  It 
be  successfully  disputed  that  from  the  evi- 
dence the  completion  of  the  scheme  would  re- 
sult in  great  damage  to  plaintiff's  property. 

The  facts  being  plainly  outlined  before  us, 
the  application  of  the  law  to  these  facts  is 
not  difficult,  and  at  the  outset  of  this  inves- 
tigation it  must  be  borne  in  mind  that  the 
principles  of  law  appertaining  to  waters  in 
natui-al  channels  are  different,  to  a  consider- 
able degree,  from  those  applicable  to  the  con- 
trol of  surface  waters.  That  a  city  has 
much  greater  powers  and  less  liabilities  re- 
specting surface  waters  than  it  has  respect- 
ing highw^ays  of  natui-al  channels  cannot  be 
questioned.  Reduced  to  its  smallest  com- 
pass, the  fact  is  that  the  city  of  Petaluma  is 
engaged  in  changing  the  natural  course  of 
the  waters  of  Edwards  creek,  and  such 
change,  if  made,  will  damage  the  property  of 
these  plaintiffs  by  preventing  a  free  use  of 
the  same.  Is  defendant  liable  for  such  ac- 
tion upon  its  part,  and  is  the  proceeding  of 
injunction  by  a  court  of  equity  the  proper 
remedy?  When  this  work  has  been  com- 
pleted, and  the  damage  actually  done,  there 
can  be  no  question  but  that  a  remedy  at  law 
for  such  damages  could  be  invoked.  Abut- 
ting owners  have  a  right  to  the  full  use  of 
the  street  for  the  purpose  of  coming  and  go- 
ing to  and  from  their  property,  and  any  un- 
lawful interference  with  that  use  is  a  tres- 
pass upon  the  rights  of  such  owners,  wheth- 
er that  interference  be  occasioned  by  an  in- 
dividual, a  corporation,  or  the  municipality 
itself.  It  is  said  in  Eachus  v.  Railway  Co., 
103  CaL  614,  37  Pac.  750:  "The  right  of  the 
owner  of  a  city  lot  to  the  use  of  the  street 
adjacent  thereto  is  property,  which  cannot  be 
taken  from  him  for  public  use  without  com- 
pensation; and  any  act  by  which  this  right 
is  impaired  is  to  that  extent  a  damage  to 
his  property.  *  *  *  Such  easement  is  a 
right  of  property  incident  to  the  lot  itself, 
and  any  damage  sustained  by  the  owner  in 
its  destruction  or  impairment  is  a  damage 
peculiar  to  himself,  and  independent  of  any 
damage  sustained  by  the  public  generally. 
For  the  purpose  of  determining  this  dam- 
age, it  is  immaterial  whether  he  has  a  fee  in 
the  street,  or  only  an  easement  for  its  use. 
In  either  case  it  is  property,  for  an  injury  to 
which  he  is  entitled  to  relief," — citing  cases. 
See,  also,  Bigelow  v.  Ballerino  (Cal.)  44  Pac 
.'}07. 

Respondent  also  insists  that  compensation 
to  an  abutting  owner  by  the  city  for  an  in- 
terference in  the  use  of  the  street  need  not  be 
made  before  the  damage  has  taken  place. 
But  article  1,  section  14,  of  the  constitution 
expressly  provides  that  compensation  must 
be  first  made  or  paid  into  court  for  the  own- 
er; and  in  the  Ballerino  Case,  last  cited,  this 
court  said}-  "But,  where  there  is  no  such 
benefit,  the  property  owner  may  rest  secure 
in  the  protection  which  the  constitution  af- 
fords him,  that  his  property  shall  not  be  tak- 
en or  damaged  without  compensation  first 


FOR  CONSTRUCTION  OR  CONDITION   OF  DRAINS  OR  SEWERS. 


367 


made.  It  Is  not  incuinbont  upon  him  to  de- 
mand that  the  authorities  shall  rospoot  his 
rights.  The  duty  is  theirs  to  work  no  un- 
lawful invasion  of  them."     And  again:     "It 

I  would  matter  little  whether  the  authorities 
first  compensated  the  property  owners,  and 
then  declared  the  alley  closed,  or  lirst  de- 
clared it  closed  and  then  made  compensation, 
proyided  it  be  distinctly  understood  that  in 
the  latter  case,  which  is  the  case  at  bar,  no 
rights  attach  or  are  lost,  no  invasion  of  the 
property  rights  of  a  nonconsentiug  owner 
may  be  worked,  and  no  substantial  impair- 
ment of  his  easement  result,  until  compen- 
sation ha.s  been  made  to  him  in  the  constitu- 

\  tional  mode." 

ilt  is  also  claimed  that  injunction  is  not  the 
proper  remedy,  but,  in  view  of  what  has  al- 
ready been  said,  that  remedy  fits  the  case. 
J  A  threatened  permanent  injury  to  a  party's 
realty  may  be  enjoined,  and  such  is  this  case, 
as  disclosed  by  the  record.  In  Brown  v.  City 
of  Seattle,  5  Wash.  44,  31  Pac.  313,  and  32 
Pac.  214,  it  is  held  that  injunction  is  the 
proper  remedy  in  a  like  case;  and  the  court, 
La  speaking  to  that  point,  said:  "We  can 
foresee  many  difficultiea,  and  perhaps  much 
litigation,  likely  to  ensue  from  the  faithful 
enforcement  of  our  constitutional  require- 
ment that  damages  be  first  paid;  bet  we 
haTe  no  choice  in  the  matter,  and  theae  dif- 
ficulties, as  well  as  many  others,  must  he 
met  and  dealt  with  as  they  arise.  It  will 
oot  be  every  case  in  which  the  property  own- 


er deems  himself  likely  to  be  injured  that 
wiU  justify  an  injunction,  and  the  courts  of 
the  state  will  undoubtedly  do  their  duty  in 
this  particular,  and  grant  no  preliminary  re- 
straining order  or  injuuction  until  it  is  made 
to  appear  with  legal  probability  or  cerUiin- 
ty  that  damages  wiU  be  incurred  by  the  grad- 
ing of  the  streets."     Until  compensation  was } 
made  the  city  had  no  right  to  damage  the/ 
plaintifiEs'  property.     Payment  of  such  dam-  . 
age  was  a  condition  precedent  to  the  crea-  I 
tion  of  the  right;   and,  until  payment,   the  ( 
city  was  a  trespasser.     In  such  a  case  in-  j 
junction  is  the  plain,  ordinary,  and  best  rem-  / 
edy.     See  Schauf ele  v.  Doyle,  86  Cal.  107,  24 
Pac.  834. 

A  demurrer  was  filed  to  the  complaint  up- 
on the  ground  of  misjoinder  of  parties  plain- 
tiff, and  misjoinder  of  causes  of  action.  As 
the  case  is  returned  to  the  lower  court  for  a 
new  trial,  it  becomes  proper  to  suggest  that 
the  demurrer  shovdd  have  been  sustained. 
As  to  the  relief  sought  by  injunction,  the 
plaintiffs  were  properly  joined,  but  as  to 
damages  there  was  a  misjoinder.  If  dam- 
ages are  sought  for  the  acts  of  defendants, 
the  plaintiffs  must  sue  separately.  Foreman 
V.  Boyle,  88  CaL  290,  26  Pac.  94.  The  judg- 
ment and  order  are  rereraed,  and  the  cause 
remanded,  with  leave  to  the  plaintiffs  to 
amend  tlveir  complaint  as  tbcjr  may  see  fit 

We  concur:  HARRISON,  J.;  VAN  FLEET, 
J. 


368 


CONTRIBUTORY  NEGLIGENCE  OF  PERSON  INJURED. 


CITY  OF  BEATRICE  t.  LEARY. 

(63  N.  W.  370,  45  Neb.  149.) 

Supreme   Court   of  Nebraska,     May  21,    1895. 

En-or  to  district  court,  Gage  county;  Bush, 
Judge. 

Action  by  Ellen  Leary  against  the  city  of 
Beatrice.  Judgment  for  plaintiff,  and  de- 
fendant brings  error.    Affirmed. 

E.  O.  Kretsinger,  for  plaintiff  in  error. 
Geo.  A.  Murphy,  for  defendant  in  error. 

RAGAN,  C.    The  Big  Blue  river  runs  south 
through  the  city  of  Beatrice,  crossing  Court 
street  at  right  angles.    The  property  of  Mi's. 
Ellen  Leary,  consisting  of  some  city  lots  and 
a  dwelling  house  thereon,  is  situated  on  the 
north  side  of  Court  street,  and  some  distance 
west  of  where  said  street  crosses  said  river. 
Cedar  street  opens  into  Court  street  immedi- 
ately  south  of  Mrs.   Leary's  property.    One 
block    south    of    Court    street,    and    parallel 
thereto,  is  Mary  street;   and  one  block  south 
of  Mary  street,  and  parallel  thereto,  is  Scott 
street.    The  country  to  the  south  and  west 
of  Mrs.  Ltaiy's  property  inclines  to  the  north 
and   east  to  the   river.     In   the   summer   of 
1891,    and    prior   thereto,    a    draw    or    swale 
heading  in  the  foot  hills  of  said  river  some 
miles   southwest  of   where   the  river   inter- 
sects Court  street,  meandered  from  the  hills 
in  a  northeasterly  direction,  and  entered  Ce- 
dar street  south  of  Scott  street,  thence  along 
Cedar  street  into  Court  street,   immediately 
south    of    the    Leary    property,    and    tnere 
opened  into  a  ditch  or  gulley  extending  down 
Court  street  to  the  Blue  river.    It  seems  from 
the  record  that  the  ditch  was  an  artificial 
channel     that  had   been   made   to   take   the 
place  of  the  draw  which  had  once  extended 
down  Court  street  to  the  river.    In  the  sum- 
mer and  autumn  of  1891  the  city  of  Beatrice 
graded  and  paved  Court  street  west  of  the 
river,  to  a  point  west  of  the  Leary  property, 
and  in  doing  so  filled  up  the  ditch  in  Court 
street   through   which  the   waters   from    the 
draw   or  swale  above  mentioned   had   been 
accustomed  to  find  their  way  to  the  river. 
The  draw  was  not  a  "running  stream,"  as 
that  term  is  commonly  understood,  although 
it  would  seem  from  the  evidence  that  there 
was  some  water  in  some  portions  of  it  dur- 
ing   most    of   the    year.    The    draw    was    in 
fact  a  natural   conduit,   through    which   the 
surface  waters  resulting  from  rains  and  molt- 
ing snows  on  a  large  area  of  country  found 
their    way    to    the    Blue    river.    Mrs.    I^eary 
brought  this  suit  to  the  district  court  of  Gage 
county    against    the    city    of    Beatrice.     She 
alleged  that  in  the  spring  of  1S92  the  waters 
came  down  in  this  swale  or  draw  from  the 
southwest  along  Cedar  stieet  to  Court  street, 
and,   being    unable    to    escape    to   the    river, 
overflowed   said   street,   and  flowed   on   and 
damaged  her  property.    The  ground  of  neg- 
ligence alleged  by  her  against  the  city,  and 
made  the  basis  of  her  action,  was  that  the 


city,  in  grading  and  paving  Court  street, 
filled  up  said  ditch,  and  failed  to  provide 
any  outlet  for  the  waters  which  were  ac- 
customed in  times  of  rains  or  freshets  to 
flow  down  in  said  swale  or  draw,  and  thence 
escape  by  said  ditch  into  the  river.  The  city, 
in  addition  to  a  general  ti'averse  of  the  ma- 
terial allegations  of  the  petition  as  to  its 
negligence,  pleaded  as  a  defense  to  the  ac- 
tion that  the  grading  and  paving  of  Court 
street  were  done  upon  the  petition  and  re- 
quest of  the  abutting  property  owners  of 
said  street,  Mrs.  Leary  being  among  the 
number  of  said  petitioners;  and  that,  by  rea- 
son of  her  petitioning  the  city  to  grade  and 
pave  said  street  in  the  manner  it  did,  she 
was  estopped  from  claiming  damages  against 
the  city  resulting  from  said  paving  and  grad- 
ing. A  further  defense  was  that  the  dam- 
ages sued  for  were  the  result  of  an  unprec- 
edented and  violent  rain  storm  and  flood, 
of  such  a  character  as  to  be,  in  contemplation 
of  law,  the  act  of  God.  Mrs.  Leary  had  a 
verdict  and  judgment,  to  reverse  which  the 
city  has  prosecuted  to  this  court  a  petition 
in  error. 

1.  The  first  contention  of  the  city  is  that 
the  damages  awarded  Mrs.  Leary  are  ex- 
cessive, and  appear  to  have  been  given  un. 
dor  the  .intiuence  of  passion  or  prejudice. 
This  contention  cannot  be  sustained.  The 
damages  awarded  are  less  than  the  damages 
testified  to;  and  therefore  the  amount  of 
the  damages  raises  no  presumption  that  the 
jury  was  influenced  by  passion  or  prejudice 
in  making  the  award. 

2.  The  second  contention  is  that  the  verdict 
is  not  sustained  by  sufficient  evidence.  Two 
arguments  are  made  in  support  of  this  as- 
signment: 

(1)  That  the  city,  prior  to  its  paving  and 
grading  Court  street,  adopted  a  plan  or 
scheme  for  the  draining  of  the  waters  which 
wore  accustomed  to  come  down  said  draw 
and  ditch  into  the  river;  and,  to  cany  out 
this  plan,  the  city  constructed  dams  or  dikes 
across  the  draw  at  Scott  and  Mary  streets, 
and  dug  ditches  along  the  sides  of  said 
streets  from  the  draw  to  the  liver.  The  suf- 
ficiency of  these  dikes  and  ditches  to  ac- 
complish the  purposes  for  which  they  were 
constructed  was  passed  upon  by  the  jury, 
and  we  cannot  say  that  they  came  to  an 
incorrect  conclusion. 

(2)  The  principal  argument,  however,  un- 
der this  head,  is  that  the  finding  of  the  jury 
that  the  damages  sustained  by  Mi-s.  Leary 
were  not  the  result  of  the  act  of  God  is 
wrong.  The  evidence  on  this  subject  was 
conflicting,  and  some  of  it  as  extraordinary 
as  the  freshet  or  rainstorm  was  alleged  to 
be.  A  large  number  of  witnesses  testified 
on  behalf  of  Mrs.  Leary  that  they  had  lived 
in  the  vicinity  of  Beatrice  for  a  number  of 
years,  and  that  the  freshet  or  rain  which  in- 
jured her  property,  while  it  was  a  great 
rain,  was  no  greater  than  other  rains  they 
had  known  there,  or,  in  substance,  that  the 


FOR  CONSTRUCTION  OR  CONDITION  OF  DRAINS  OR  SEWERS. 


3G9 


rain  was  not  an  unprecedented  flood,  a  cloud- 
burst,  or  waterspout     On  the  other   hand, 
witness  after  witness  in  behalf  of  the  city 
testified  that  it  was  the  most  violent  flood 
they   had    ever   known.     The   testimony   of 
two  of  these  witnesses  and  their  names  de- 
sei've  a  place  in  the  pisf-atorial  history  of 
the   state.     One   Frank    Thompson   testified 
that  just  prior  to  the  rain  he   had  crossed 
the  draw  in  question   on  a  pony,  and   im- 
mediately after  crossing  the  draw  It  began 
to  rain,  and  before  he  could  recross  the  draw 
the  water  had  risen  in  it  so  high  that  the 
pony  was  compelled  to  swim,  and  that  the 
flood  carried  the  pony  and  his  rider  over  a 
wire  fence;   that,  after  he  had  succeeded  in 
crossing   the   draw,   he   went  down   to   tlie 
city,  presumably  on  his  pony;    and  that  the 
flood  carried  him  over  more  wire  fences;   that 
the  draw  where  he  was  when  the  rain  began 
was  12  feet  deep  and  40  feet  wide,  and  it 
was  filled  with  water  to  the  top  of  its  banks 
in  one  second.     The  other  witness,  Schultz, 
had  a  barn  near  Scott  street  and  the  draw. 
He  testified  that  the  water  rose  in  the  draw 
up  to  the  top  of  the  roof  of  the  barn,  and 
did  so  in  five  or  six  minutes.     The  record 
does    not    disclose    whether   the    barn   was 
washed  away.     It  is  asking  too  much  of  this 
court  to  disturb  the  verdict  of  a  jury  based 
on   evidence  like  the   above.     We   are   not 
fitted  by  our  profession  or  training  for  such 
a  task.     Only  a  jury  of  the  vicinage  could 
find  the  straight  and  narrow  way  of  truth 
and  dry  land  in  such  storms  and  floods  and 
Cimmerian  darkness   as  this.     The   district 
court  told  the  jury  that,   if  they   believed 
from   the   evidence   that  the    damage   done 
to  Mrs.  Leary's  property  was  the  result  of 
excessive,  extraordinary,  and  unusual  cloud- 
bursts, rain  storms,  and  floods,  these  would 
constitute  under  the  law  an  act  of  God,  for 
which  the  city  was  not  liable,  unless  they 
found  from  the  evidence  that  the  negligence 
of  the  city  contributed  in  a  "large  degree," 
"along  with  the  act  of  God,"  to  the  damage 
of  the  plaintiff.     This  instruction  was  cor- 
rect.    Railroad  Co.  v.  Fink,  18  Neb.  89,  24 
N.  W.  691.     The  evidence  shows  that  Mrs. 
Leary's  property  was  damaged  by  the  fresh- 
et in  the  spring  of  1892;   that  she  sustained 
damages  equal  to  the  amount  awarded  by 
the  jury;    that  her  property  was  damaged 
by  the  waters  that  came  down  this  draw  to 
Court  street,  and  by  reason  of  the  draw  be- 
ing there  obstructed,  and  the  ditch   in  the 
street  having  been  filled,  the  watera   were 
unable  to  escape  to  the  river,  and  overflowed 
on    her    property;    that   this    overflow    was 
brought  about  by  the  act  of  the  city  in  dam- 
ming the  draw  and  filling  the  ditch  in  Court 
street,  and  failing  to  provide  sufficient  out- 
lets or  ditches  down  Mary  and  Scott  streets 
or  elsewhere  to  vent  these  waters. 

We  therefore  reach  the  conclusion  that  the 
finding  of  the  jury  that  the  negligence  of 
the  city  was  the  proximate  cause  of  the  in- 
jury sustained  by  ]Mrs.  Leary  has  sufficient 
evidence  in  the  record  for  its  supporL 
ABB.CORP— 24 


3.  Another  assignment  Is  that  the  verdict 
is  contrary  to  law.  Thi-ee  arguments  are 
made  to  support  this  assignment. 

It  is  first   insisted  that  the  city  had  the//) 
lawful  right  to  pave  and  grade  Court  street; 
and  that  in  doing  so  it  had  a  right  to  defend 
itself  and  its  property  against  surface  water, 
—the   common   enemy,— by   filling  the  ditch 
in  said  street,  and  diking  or  damming  the 
draw  that  emptied  into  said  ditch;   and  that 
it  is  not  responsible  for  any  damages  that 
Mrs.  , Leary   may   have   sustained   resulting 
from  its  actions  in  that  respect.     The  doc-  j 
trine  of  this  court  is  the  rule  of  the  common 
law  that  surface  water  is  a  common  enemy,  1 
and  that  an  owner  may  defend  his  premises 
against  it  by  dike  or  embankment,  and,  if  I 
damages  result  to  adjoining  proprietors  by  ' 
reason  of  such  defense,  he  is  not  liable  there- 
for.    But  this  rule  is  a  general  one,  and  sub- 
ject to  another  common-law  rule  that  a  pro-  i 
prietor  must  so  use  his  own  property  as  not  ' 
to  unnecessarily  and  negligently  injure  his 
neighbor;     and    therefore    every    proprietor 
may  lawfully  improve  his  property  by  doinff  / 
what  is  reasonably  necessary  for  that  pur-  | 
pose,  and,  unless  guilty  of  some  act  of  neg-  \ 
ligence  in  the  manner  of  its  execution,  will   . 
not  be  answerable  to  an  adjoining  proprie-  | 
tor,  although  he  may  thereby  cause  the  sur- 
face water  to  flow  on  the  premises  of  the-  I 
latter  to  his  damage.     But  if,  in  the  execu-  . 
tion  of  such  enterprise,  he  is  guilty  of  negli-  I 
gence  which  is  the  natural  and  proximate  I 
cause  of  injury   to   his  neighbor,   he  is   ac- 
countable therefor.     Railroad  Co.  v.  Suther- 
land  (Neb.)  62  N.  W.  8r)9.   and  cases  there 
cited.     The  city  had  the  right  to  grade  and 
pave   Court   street.     It   had   the  undoubted 
right  to  fill  the  ditch  therein,   and  to   dike 
or   dam    the    draw    that   emptied    into    said 
ditch.     In  other  words,  it  had  the  right  to 
take  such  steps  and  perform  such  acts  as,^ 
in  its  judgment,  were  necessary  to  protect 
its  street  from  surface  waters;    but,  while 
it  had  this  right,  it  was  charged  with  the 
duty  of  exei-cising  it  with  ordinary  care.    It 
knew,  and   was   bound  to   know,   that  this 
draw  was  the  natural  conduit  from  which 
the  surface  watei-s  from  a  large  area  of  sur- 
rounding country   were  wont  to   find   their 
way  to  the  Blue  river;    and  when  it  diked 
this  di-aw  at  Court  street,  and  filled  up  the 
ditch  in  said  street,  it  was  charged  with  the 
duty  of  constructing   sufficient  ditches  and 
outlets  to  carry  the  surface  waters  coming 
down  said  draw  to  the  river. 

Another  argument  under  this  assignment  Is  (2.) 
this:"   Some  time  in  the  spring  of  1891,  Mrs. 
Leary  and  other  property  owners  along  Court 
street  petitioned  the  city  of  Beatrice  to  grade 
and  pave  said  street.    The  argument  is  that, 
the  city  having  complied  with  this  petition, 
Mrs.  Leary  is  now  estopped  from  claiming 
damages   resulting   from   such   grading   and 
paving.     It   must  be  remembered,   however,  , 
that  the  basis  of  Mrs.  Leary's  action  against  I 
the  city  is  not  that  her  property  was  damaged  ( 
simply  because  the  city  graded  and  paved 


370 


CONTRIBUTORY  I^EGLIGEXCE  OF  PERSON  INJURED. 


I  Court  street,  but  her  cause  of  action  is  found- 
ed, and  founded  only,  upon  the  alleged  negli- 
gent omission  of  the  citj'  to  provide  suitable 
i  and  sufficient  outlets  for  the  surface  waters 
\  of  the  draw  after  the  city  had  dammed  it,  and 
filled  the  ditch  into  which  it  emptied.  To 
sustain  his  contention,  counsel  cite  us  to 
Hembling  v.  City  of  Big  Rapids  (Mich.)  50 
X.  W.  741,  where  it  was  held  that  "where 
plaintiff  joined  in  a  petition  to  the  city  coun- 
cil to  grade  and  improve  a  street  abutting  his 
lots,  paid  his  assessment  for  the  improve- 
ment voluntarily,  without  objecting  to  the  im- 
provement or  the  assos.-?ment,  he  is  after- 
wards estopped  from  claiming  damages  by 
reason  of  the  improvement,  damming  the 
water  course  across  the  street,  and  causing  the 
water  to  flow  his  lots."  To  the  same  effect 
are  City  of  Pontiac  v.  Carter,  32  Mich.  164. 
and  Collins  v.  City  of  Grand  Rapids  (jNIich.) 
54  N.  W.  889.  Whatever  may  be  said  of 
these  decisions,  they  are  of  no  force  in  this 
state,  under  our  constitution,  which  expressly 
provides  that  private  property  shall  neither 
be  taken  nor  damaged  for  public  use  without 
/  just  compensation.  It  may  be  that  if  the 
I  city,  in  grading  and  paving  Court  street,  left 
Mrs.  Leary's  property  either  so  far  above 
or  below  grade  as  to  damage  it,  she,  hav- 
ing petitioned  the  city  to  bring  the  street  to 
grade,  would  be  thereby  estopped  from  claim- 
I  ing  damages.  But  that  point  is  not  before  us, 
and  we  do  not  decide  it.  It  would  be  going 
very  far,  indeed,  to  hold  that,  because  Mrs. 

ILeary  petitioned  the  city  council  to  grade  and 
pave  this  street,  she  thereby  waived  her  cause 
of   action  against  the   city    for   damages    it 
J  might  do  to  her  property  in  performing  the 
grading  and  paving  in  a  negligent  manner. 
/'iJ    The  third  argument  is  that  the  judgment  is 
contrary  to  law,  because  the  city  adopted  a 
plan  for  carrying  the  waters  of  this  draw 
into  the  Blue  river  by  building  dikes,  as  al- 
ready stated,  across  the  draw  at  Scott  and 
Mary  streets,  and  constructing  ditches  along 
said  streets  from  the  draw  to  the  river;  that 
the  city  in  adopting  this  plan  was  exercising 
'  legislative  functions;   and  that  the  city  is  not 
,  liable  for  any  damages  that  have  resulted, 
although  the  plan  adopted  was  defective,  as 
■  it  is  not  liable,  in  the  absence  of  bad  faith. 
I  for  a  mere  error  of  judgment.    The  author- 
ities on  this  question  are  in  hopeless  conflict. 
On  the  one  hand,  it  is  held  that  the  adoption 
of  a  plan  of  drainage  by  a  city  is  a  judicial 
act  on  the  part  of  its  governing  body,  and 
that,  theref.u',  the  city  is  not  responsible  in 
damages  if  the  plan  adopted  is  insufficient  or 
defective.    On  the  other  hand,  it  is  held  that 
the  duty  of  a  municipal  corporation  to  pro- 
vide drains  and  sewers  is  ministerial  in  its 
character  and  not  judicial,  and  that  municipal 
corporations  are  liable  for  the  safety,  suffi- 
ciency, and  the  skillful  construction  of  its 
sewers  and  system  of  drainage.    In  City  of 
»  Indianapolis  v.   IIuCEer,  30  Ind.  235,   it  was 
\  held  that  "an  incorporated  city  is  not  ordi- 


narily liable  for  consequential  injuries  to  prl- 1 
vate  property  resulting  from  the  grading  and  f 
improvement  of  its  streets,  if,  in  making  such 
improvements,  reasonable  skill  and  care  be  | 
used  to   avoid  the   injuries.    The    skill    and  ' 
care  which  is  incumbent  relates  as  well  to 
the  plan  as  to  the  execution  of  the  work;   in 
the  case  of  a  sewer,  to  its  capacity,  as  well  as 
to  the  mechanism  in  its  construction."    We  i 
think  this  is  the  better  rule.    But,  to  sustain  j 
the  judgment  in  this  case,  it  is  not  necessary 
to  decide  whether  negligence  can  be  imputed 
to  a  city,  and  it  made  liable  for  damages  re- 
sulting therefrom,  because  its  council,  acting 
in  good  faith,  erred  in  the  plan  or  scheme  of 
drainage  adopted  by  it.    If  the  city  of  Bea- 
trice, in  adopting  the  plan  it  did  adopt  for  i 
conveying  the  surface  waters  from  the  draw  / 
in  question  to  the  Blue  river,  exercised  legis- 1 
lative  fimctions,  if  the  plan  adopted  was  de-l 
fective  and  imperfect,  and  if  the  city  is  not  lia- 
ble because  of  the  adoption  of  such  defective 
plan,  still  the  building  of  the  dikes  at  Scott 
and  Mary  streets,  the  cutting  of  the  ditches  I 
along  those  streets  to  the  Blue  river,   were  ' 
ministerial  acts;   and  if  the  city,  in  building 
said  dikes  aud  in  constructing  said  ditches, 
negligently  omitted  to  construct  them  of  suffi- 
cient  capacity   to   carry   off   the   waters   that  i 
were  accustomed  to  flow  down  said  draw, 
aud  damages  resulted  to  the  plaintiff  as  the  I 
proximate  result  of  such  negligent  omission, 
the   city   was   liable.     Whether  the   ditches 
were  properly  constructed  and  were  of  suffi- . 
cient  capacity  for  the  purposes  intended  were  I 
questions   of   fact;    and   whether  their  con-| 
struction  in  the  manner  that  they  were  con-' 
structed  amounted  to  negligence  on  the  part 
of  the  city  was  also  a  question  of  fact. 

4.  Some  criticisms  are  indulged  by  counsel 
with  reference  to  the  instructions  given  and 
refused.  We  have  carefully  examiued  the 
points  made  by  counsel,  and  reach  the  con- 
clusion that  no  error  prejudicial  to  the  city 
was  committed  by  the  court  in  the  giving  or 
refusing  of  instructions.  Without  desiring  or 
intending  any  reflection  whatever  upon  the 
learned  judge  who  tried  this  case  or  on  the 
eminent  counsel  engaged  therein,  we  deem  it 
oiu*  duty  to  say  that  we  think  the  jury  in  this 
case  was  instructed  too  much.  At  the  re- 
quest of  the  plaintiff,  the  court  gave  the  jury 
12  instructions;  at  the  request  of  the  city,  15; 
and,  in  addition  to  these,  there  were  6  para- 
graphs or  instructions  in  the  charge  given  by 
the  court  to  the  jui-y  on  its  own  motion.  The 
instructions  in  a  case  should  be  few  in 
number,  and  should  present  to  the  jury  the 
law  applicable  to  the  issues  in  the  case  in 
simple  language  and  terse  sentences.  Nu- 
merous instructions  or  instructions  with  long 
and  involved  sentences  are  more  likely  to 
confuse  the  jury  and  lead  it  astray  than  to 
enlighten  it  aud  direct  it  to  the  material 
points  of  the  case. 

The  judgment  of  the  district  court  is  af- 
fiiTued. 


FOR  CONSTRUCTION  OR  CONDITION  OF  DRAINS  OR  SEWERS. 


371 


BLIZZARD  V.    BOROUGH  OF  DANVILLE. 

(34  Atl.  &46,  175  Pa.  St  479.) 
Supreme  Court  of  Pennsylvania.    May  18,  1896. 

Appeal  from  court  of  common  pleas,  Mon- 
tour county. 

Action  by  W.  H.  J.  Blizzard  against  the 
borough  of  Danville  to  recover  damages  for 
Injury  to  property  by  the  maintenance  of  a 
Bewer.  A  compulsory  nonsuit  was  entered, 
and  from  an  order  discharging  a  rule  to 
show  cause  why  such  nonsuit  should  not  be 
stricken  off,  plaintiff  appeals.     Reversed. 

.Tames  Scarlet  and  H.  M.  Hinckley,  for  ai>- 
pellant  R.  S.  Ammerman  ajid  Grant  Her- 
ring, for  appellee. 

WILLIAMS,  J.  /On  the  trial  of  this  case  it 
was   made   to   appear  that   the   borough   of 
Danville  began  about  1860  to  make  use  of  a 
natural  stream  known  as    'Blizzard's  Run" 
as  a  part  of  its  general  system  of  drainage. 
By  means  of  a  covered  sewer  and  a  paved 
alley,  the  surface  drainage  of  nearly  20  acres 
has  been  tiuTied  into  this  stream,  and  one  or 
more  cellar  drains  have  been  connected  with 
it.     The  stream  thus  became  an  open  sewer, 
adopted  and  used  as  such  by  the  borough  au- 
thorities;   and  the  duty  of  the  borough  to 
keep  its  channel  open,  and  to  remove  accu- 
mulations of  filth,  ashes,  or  other  material 
that  obstructed  the  flow  of  the  water  and 
threw  it  out  of  its  banks  upon  the  adjoining 
lot  owners  was  as  clear  as  though  the  sewer 
had    been    constnicted,    instead    of    having 
been  adopted,  by  the  action  of  the  municipal 
authorities.    'The  right  of  action  by  a   lot 
s  owner  grows,  not  out  of  the  adoption  of  the 
I  stream  as  a  sewer,  which  was  an  act  wholly 
'  within  the  power  of  the  municipality,   but 
\  out    of   its    negligence    in    not    keeping    the 
j  sewer  in  at  least  as  good   condition  as   it 
.  found  it.     There  is  therefore  no  question  of 
I  prescriptive  right  in  this  case.     There  can  I 

be  no  prescriptive  right  to  neglect  so  plain  a 

I  municipal  duty.     If  the  borough  load  entered 

upon  some  portion  of  the  plaintiff's  lot  in  tlie 

\  construction  of  a  sower  in  1800,  the  right  of 

'  action  for  that  trespass  would  be  at  this  time 


effectually  barred  by  the  lapse  of  time.     But 
when  a  sewer,  built,  it  may  be,  100  or  more 
years  ago,  gets  into  bad  repair,  the  liability 
of  the  municipality  for  the  injury  inflicted 
upon  lot  owners  arises  when  the  injurj'  oc- 
curs, and  may   be  sued  for  within  6  years  j 
thereafter.     The  judgment   of  nonsuit  pro-  ' 
ceeded,   therefore,   upon   an   erroneotis    idea  • 
of   the   relation   of   the   parties   and   of   the 
plaintiff's  cause  of  action.     We  are  inclined 
to   think   enough   appears   in   the   plaintiff's 
declaration    to    show    that   the   injury    com- 
plained of  is  charged  to  the  failure  on  the 
part  of  the  municipality  to  clean   out  and 
keep  open  the  channel  of  the  stream,  so  as 
in  ordinary  floods  to  afford  a  passage  for  its 
water  as  freely  as  the  natiual   channel   did 
before  the  action  of  18G0  was  taken  by  the 
borough.    This  is  the  measure  of  duty  which 
the  municipality  owes  the  plaintiff,  and,  if 
an  amendment  is  needed  in  order  to  place 
the  plaintiff's  claim  fully  on  the  record,  it 
can  easily  be  made.     But  upon  the  evidence 
this  case  presented  a  question  of  fact  for  the 
jury.     That  was  a  question  of  negligence  on 
the  part  of  the   municipality.     If  the  bor-  i 
ough  has  simply  drained  into  this  stream,  j 
and  then  given  no  attention  to  the  effect  of  I 
its  action  on  the  stream  or  on  lot  holders  j 
along  its  banks,  and  the  stream  has  been 
choked,  or  its  channel  obstructed,  in  conse- 
quence of  the  character  or  quantity  of  the  j 
material  drained  into  it,  and  injury  has  re-   ( 
suited  to  the  plaintiff,  the  negligence  of  the  | 
borough  authorities  in  not  removing  such  ob- 
struction and  keeping  the  channel  open  is 
the  true  ground  on  which  the  plaintiff's  right 
to  recover  must  rest     Was  the  stream  ob-   i 
structed   or  filled  up   as   the   result   of  the 
adoption  of  this  stream  as  an  open  sewer,    [ 
and  the  drainage  into  it?     Did  the  borough 
neglect  to  keep  the  channel  open,  and  permit 
the  overflow  and  accumulations  complained 
of?     Was    the    plaintiff    injured    in    conse- 
quence  of   this   negligence?     If    the   jury   so 
found,  their  only  remaining  duty  was  the  as- 
certainment of  his  damages.     The  judgment 
of  nonsuit  entered  in  this  case  is  now  re- 
versed, and  set  aside,  and  a  venire  facias  de 
novo  awarded. 


372 


CONTRIBUTORY  NEGLIGENCE  OF  PERSON  INJURED. 


TATE  T.  CITY  OF  ST.  PAUL. 
(58  N.  W.  158,  56  Minn.  527.) 
Supreme  Court  of  Minnesota.      Feb.   17,   1894. 
Appeal  from  district  court,  Ramsey  coun- 
ty; Charles  D.  Kerr,  Judge. 

Action  by  William  E.  Tate  against  the 
city  of  St  Paul.  Judgment  was  oi'tiered  for 
plaintiff,  and  defendant  appeals.    Affirmed. 

Leon  T.  Chamberlain,  for  appellant  John 
L.  Townley,  for  respondent 

GILFILLAN,  O.  J.^The  action  Is  to  re- 
cover damages  arising  from  a  sewer  laid  by 
defendant,  and  with  which  plaintiff  had  con- 
nected, as  he  had  a  right  to  do,  setting  the 
water  in  it  back  so  that  it  flooded  plain- 
tiff's basements.  The  defect  alleged  in  the 
sewer  was  that  it  was  of  insufficient  capac- 
ity to  carry  off  the  water  brought  into  it. 
The  defect  appears  to  have  existed  in  the 
original  plan  for  sewering  that  part  of  the 
city;  that  is,  the  city,  in  determining  upon 
a  system  of  sewers,  determined  upon  the 
sizes  required  for  the  main  sewer  and  for  the 
lateral  sewers  running  into  it,  and  the  size  de- 
termined on  for  the  former  proved  too  small.; 

The  rule  is  uniformly  conceded  that  for  in- 
juries wholly  incidental  to  and  consequential 
upon  the  exercise  by  a  municipal  corpora- 
tion of  the  legislative  or  discretionary  pow- 
ers intrusted  to  it  (as  distinguished  from  its 
ministerial  acts)  no  action  wiU  lie  against  it 
Instances  of  the  application  of  that  rule  are 
furnished  by  Lee  v.  City  of  Minneapolis,  22 
Minn.  13,  where  the  power  exercised  was 
establishing  the  grade  of  a  street  under  the 
diarter,   and  Alden  v.   City  of  Minneapolis, 

24  Minn.  254,  whei-e  the  city  had  established 
a  system  of  grades  for  streets  and  sidewalks, 
and  drains,  gutters,  catch-basins,  and  sewers, 
and  had  constructed  the  streets,  sidewalks, 
drains,  and  gutters,  and  partially  completed 
the  sewers.  The  complaint  wus  that  the 
sewers,  drains,  gutters,  and  catch-basins  were 
not  sufficient  to  carry  off  the  sm-face  water 
falling  in  rains  upon  the  streets,  so  that 
It  flowed  from  the  streets  upon  plaintiff's 
lot.  The  line  between  legislative  acts  and 
ministerial  acts  of  a  municipal  corporation  is 
not   very    clearly   marked    by    the   decisions, 

i  nor  is  it  necessary  to  attempt  to  trace  it  in 
this  case.    Some  of  the  earlier  cases  do  not 

I  clearly  recognize  the  distinction  between  in- 
juries incidental  to  the  exei-cise  of  munici- 
pal legislative  functions,  and  direct  and  pos- 
itive wrongs— such,  for  instance,  as  tres- 
pass— caused  by  it  The  later  and  better  au- 
thorities, however,  recognize  the  distinction, 
iind,  while  adhering  to  the  rule  that  for  the 

I  former  no  action  will  Ue,  hold  that  for  the 
latter  the  party  may  recover.  The  distinc- 
tion is  apparent,  though  it  is  not  clearly  dis- 
cussed in  either  of  the  cases,  of  O'Brien  v. 
City  of  St  Paul.  18  Minn.  17G,  (Gil.  1G.3,)  and 

25  Minn.  .3.'?1;  Kobs  v.  City  of  Minneapolis,  22 
Minn.  159;  and  the  Lee  and  Alden  Cases,  above 
cited.     To  determine  when  and  upon  what 


plan  a  public  improvement  shall  be  made  is, 
unless  the  charter  otherwise  provides,  left  to 
the  judgment  of  the  proper  municipal  au- 
thorities, and  is,  in  its  nature,  legislntivo. 
And,  although  the  power  is  vested  In  the 
municipality  for  the  benefit  and  relief  of 
property,  error  of  judgment  as  to  when  or 
upon  what  plan  the  improvement  shall  be 
made,  resulting  only  in  incidental  injm-y  to 
the  property,  will  not  be  ground  of  action; 
as,  if,  in  grading  sti-eets  to  the  authorized 
grades,  the  plan  of  the  grading  is  inadequate 
to  drain  a  lot  of  the  surface  water,  or  even 
if  it  make  it  more  difficult  and  expensive  for 
the  owner  to  drain  it  or  make  access  to  the 
lot  more  difficult,  that  is  a  result  incidental 
to  the  improvement  But  for  a  direct  in- 
vasion of  one's  right  of  property,  even  though 
contemplated  by,  or  necessarily  restflting 
from,  the  plan  adopted,  an  action  will  lie; 
otherwise,  it  would  be  taking  private  prop- 
erty for  public  tise  without  compensation. 
Thus,  if,  in  cutting  a  street  down  a  grade, 
the  soil  of  an  abutting  lot  is  precipitated 
into  the  cut,  or  if,  in  filling  up  to  grade,  the 
slope  of  the  embankment  is  made  to  rest  on 
private  property,  that  is  a  direct  invasion 
of  property  rights  which  cannot  be  justified, 
even  though  the  plan  adopted  contemplates, 
or  will  necessarily  produce,  the  result  Ju^e 
Dillon,  in  his  work  on  Municipal  Corpora- 
tions, (4th  Ed.,  §§  1047-1051,)  approves  the 
rule,  laid  down  in  more  recent  decisions  by 
some  of  our  ablest  cotu-ts,  that  if  a  sewer, 
whatever  its  plan,  is  so  constructed  as  to 
cause  a  positive  and  direct  invasion  of 
private  property,  as  by  collecting  and  throw- 
ing upon  it,  to  its  damage,  water  or  sewage 
which  would  not  otherwise  have  flowed  or 
fotmd  its  way  there,  the  corporation  is  liable. 
Conspicuous  for  their  ability,  among  the  cases 
referred  to  by  him,  are  Ashley  v.  Port  Huron, 
35  Mich.  296,  and  Seifert  v.  City  of  Brooklyn, 
101  N.  Y.  136,  4  N.  E.  321,— each,  the  former 
especially,  a  very  interesting  case.  See,  also. 
Bray  ton  v.  Fall  River,  113  Mass.  218;  Lehn 
V.  City  and  County  of  San  Francisco,  66  Cal. 
76,  4  Pac.  965;  "Weis  v.  City  of  Madison,  75 
Ind.  241.  It  is  Impossible  to  answer  the  rea- 
soning of  these  cases,  especially  where  the 
injiuy  complained  of  constitutes  a  taking. 
That  making  one's  premises  a  place  of  de- 
posit for  the  surplus  waters  in  the  sewers  in 
times  of  high  water,  or  creating  a  nuisance 
upon  them  so  as  to  deprive  the  owner  of  the 
beneficial  use  of  his  property,  is  an  appro- 
priation requiring  compensation  to  be  made, 
see  "Weaver  v.  Boom  Co.,  28  Minn.  534,  11 
N.  "W.  114. 

The  comt  below  Instructed  the  jtiry  "that 
where  a  public  work,  for  instance  a  sewer, 
iis  the  same  was  originally  planned  and  con- 
structed, is  found  to  result  in  direct  and 
physical  injury  to  the  property  of  another, 
iliat  would  not  otherwise  have  happened, 
and  which,  from  its  nature,  is  liable  to  be 
repeated  and  continuous,  but  is  remediable  by 
a  change  of  plan  or  the  adoption  of  prudent 


FOR  CONSTRUCTION  OR  CONDITION  OF  DRAINS  OR  SEWERS. 


373 


I  measures,  the  corporation  is  liable  for  such 

'  damages  as  occur  in  consequence  of  the  ori^ji- 

I  nal  cause,   after  notice  and  an  omission   to 

u><o  onlinaiy  care  to  remedy  the  evil."    This 

Is  within  the  rule  stated  in  Dillon  and  the 

cases  cited,  and,  as  it  gives  the  corporation 


an  opportunity  to  correct  or  obviate  the  er-^ 
ror  in  the  orig:inal  plan  before  liability,  we  do 
not  hesitate  to  approve  it    This   is  as  farj 
as  we  need  go  in  this  case.    The  evidence  was 
such  as  to  justify  a  verdict  for  plaintiff  under 
that  chai-ge  of  the  coiu-t.    Order  affirmed. 


374 


CONTRIBUTORY  NEGLIGENCE  OF  PERSON  INJURED. 


MAYOR,  ETC.,  OF  CITY  OF  NEW  YORK  et 
al.  V.  WORKIMAN. 

(14  C.  G.  A.  530,  67  Fed.  347.) 

Circuit  Court  of  Appeals,  Second  Circuit. 
April  16,  1895. 

No.  118. 

Appeal  from  the  District  Court  of  the  Unit- 
ed States  for  the  Southern  District  of  New 
York. 

This  was  a  hbel  by  Robert  W.  Workman 
against  the  mayor,  aldermen,  and  commonal- 
ty of  the  city  of  New  York,  the  fire  depart- 
ment of  that  city,  and  James  A.  Gallagher, 
for  damages  caused  by  a  collision.  The  dis- 
trict com-t  rendered  a  decree  for  the  libelant 
against  the  mayor,  etc.,  and  Gallagher.  63 
Fed.  296.     Respondents  appeal. 

Francis  M.  Scott  and  David  J.  Dean,  for 
appellant  mayor,  etc.,  of  city  of  New  York. 
George  L.  Sterling,  for  appellant  J.  A.  Gal- 
lagher. Chas.  C.  Burlingame  and  Harrington 
Putnam,  for  appellee. 

Before  WALLACE,  LACOMBE,  and  SHIP- 
MAN,  Circuit  Judges. 

;  WALLACE,  Circuit  Judge.  The  evidence 
I  in  the  record  adequately  supports  the  conclu- 
sion of  the  court  below  that  the  injuries 
caused  to  the  libelant's  vessel  by  the  impact 
of  the  fire  boat  were  caused  by  the  negligent 
[  management  of  the  fire  boat  while  the  latter 
was  ti-ying  to  reach  a  convenient  location  to 
I  play  upon  a  burning  building  near  the  pier  at 
which  the  libelant's  vessel  was  moored.  The 
I  case,  then,  presents  the  legal  question  wheth- 
'  er  the  municipal  coiiDoration,  the  mayor,  etc., 
of  the  city  of  New  York,  is  responsible  for 
•  the  negligence  of  the  members  of  its  fire  de- 
i'  partment,  committed  while  attempting  to  ex- 
'  tinguish  a  fire  within  the  corporate  limits. 
That  the  suit  is  brought  in  a  court  of  ad- 
miralty instead  of  a  common-law  court,  and 
that  the  negligence  consisted  in  the  improper 
navigation  of  the  vessel,  are  considerations 
which  cannot  affect  the  conclusion.  Although 
the  vessel  may  have  been  the  direct  instru- 
mentality, the  offending  thing,  in  effecting 
a  marine  tort,  neither  the  vessel  nor  her  own- 
ers can  be  held  responsible  by  reason  of  that 
circumstance  alone.  The  common  case  of  a 
collision  of  a  vessel  in  tow  of  another  and 
a  third  vessel,  produced  by  the  negligence  of 
the  towing  vessel,  is  a  sufficient  illustration. 
If  the  vessel  in  tow  is  free  from  negligence, 
neither  she  nor  her  owner  is  liable  for  the 
Injury.  Accountabihty,  either  personally  or 
upon  the  principle  of  agency,  must  concur 
with  ifijury  to  give  a  cause  of  action  in  any 
tribunal,  equally  In  admiralty  as  at  common 
raw.  If  the  city  of  New  York  would  not 
have  been  liable  if  one  of  its  steam  fire  en- 
gines, manned  by  the  members  of  the  fire  de- 
partment, had,  by  want  of  due  care,  while  en- 
deavoring to  reach  a  conflagration,  injured 
an  individual  or  his  property,  it  cannot  be  lia- 
ble in  the  present  suit. 


It  is  familiar  law  that  the  officers  selected 
by  a  municipal  corporation  to  perform  a  pub- 
lic service  for  the  general  welfare  of  the  in- 
habitants or  the  community,  in  which  the  cor- 
poration has  no  private  interest,  and  from 
which  it  derives  no  special  benefit  or  ad- 
vantage in  its  coiporate  capacity,  are  not 
to  be  regai'ded  as  the  servants  or  agents  of 
the  municipality,  and  for  their  negligence  or 
want  of  skill  it  cannot  be  held  liable.  This 
is  so,  notwithstanding  such  officers  derive 
their  appointment  fi-om,  and  are  paid  by,  the 
corporation  itself.  In  selecting  and  employ- 
ing them,  the  municipality  merely  performs 
a  poUtical  or  governmental  function;  the  du- 
ties intrusted  to  them  do  not  relate  to  the 
exercise  of  corporate  powers;  and  hence  they 
are  the  agents  or  servants  of  the  public  at 
large.  Upon  this  principle  it  has  uniformly 
been  decided  by  the  courts  that  municipal 
corpoi-ations  are  not  liable  for  the  negligence 
or  wrongful  acts  of  the  officers  of  the  police 
or  health  departments,  committed  in  the 
course  of  their  ordinarj'  employment.  Unless 
the  duties  of  the  officers  of  the  fire  depart- 
ment are  of  a  different  complexion,  and  they 
are  the  servants  of  the  municipality  because 
they  are  engaged  in  performing  one  of  its 
corporate  functions,  the  same  principle  must 
extend  immunity  to  the  municipality  for  the 
neghgent  acts  of  these  ofiicers  and  their  sub- 
ordinates. A  municipal  corporation,  like  a 
private  corporation,  is  liable  to  any  person 
who  has  sustained  injury  in  consequence  of 
its  neglect  to  perform  a  corporate  duty;  but 
because  the  duties  of  municipal  corporations 
in  respect  to  protecting  their  citizens  from 
the  dangers  of  fires  are  governmental,  and 
not  corporate,  they  are  not  liable  to  the  own- 
er of  property  injured  by  fire  in  consequence 
of  their  neglect  to  provide  suitable  fire  ap- 
paratus, or  to  provide  and  keep  in  repair  pub- 
lic cisterns,  or  the  failure  of  their  firemen  to 
use  proper  efforts.  Wheeler  v.  Cincinnati,  19 
Ohio  St.  19;  Patch  v.  Covington,  17  B.  Mon. 
722;  Brinkmeyer  v.  Evansville,  29  Ind.  1S7; 
Weightman  v.  Washington,  1  Black,  39,  49; 
Kies  V.  City  of  Erie,  135  Pa.  St.  144,  19  Atl. 
942;  Heller  v.  Sedalia,  53  Mo.  159;  Robinson 
V.  Evansville,  87  Ind.  3.34.  So  uniform  and 
numerous  are  the  authorities  against  the  prop- 
osition that  a  municipal  corporation  is  liable 
for  the  negligent  acts  of  these  officers  that 
to  discuss  it  as  an  original  question  would 
seem  to  be  inappropriate.  In  one  of  the  most 
recent  text-books  on  the  law  of  municipal 
corporations,  the  rule  is  thus  stated:  "Mu- 
nicipal corporations  are  not  liable  for  the  neg- 
ligence of  their  firemen,  although  they  may 
be  appointed  and  removed  by  the  city,  and^ 
the  perfonnance  of  their  duties  are  wholly 
subject  to  its  control."  Tj^.  Mun.  Corp.  § 
;:i33a.  A  reference  to  the  following  adjudi- 
cated cases.  In  which  the  rule  has  been  ap- 
plied, will  suflBce  to  show  how  universally  It 
obtains  in  the  courts  of  this  country:  Haf- 
ford  y.  New  Bedford,  16  Gray,  297,  in  which 
a  liose  carriage  on  its  way  to  a  fire  ran  over 


FOR  TORTS  OF  OFFICERS  OR  AGENTS. 


375 


the  plaintiff;  Fisher  v.  Boston,  lOi  Mass.  87, 
In  which  the  injury  was  caused  from  the 
bursting  of  hose;  Burrill  v.  Augusta,  78  Me. 
118,  3  Atl.  177,  in  which  a  horse  was  fright- 
ened by  escaping  steam  from  an  engine  left 
in  the  street;  Wild  v.  Paterson,  47  N.  J. 
Law,  406,  1  Atl.  490,  in  which  the  injury  was 
caused  from  a  defect  in  the  brake  of  an  en- 
gine; Hayes  v.  Oshkosh.  33  Wis.  314,  in 
which  damage  was  sustained  by  the  negligent 
management  of  an  engine  in  allowing  the  es- 
cape of  sparks;  Wilcox  v.  City  of  Chicago, 
107  111.  334,  a  case  of  collision  with  a  hook 
and  ladder  wagon;  Edgerly  v.  Concord,  59 
N.  H.  78,  a  case  of  the  neghgent  testing  of 
a  hydrant;  Howard  v.  San  Francisco,  51  Cal. 
52,  a  case  of  collision  with  an  engine;  Mc- 
Kenna  v.  St.  Louis,  6  Mo.  App.  320,  a  case 
of  the  negligent  management  of  hose  car- 
riage; Jewett  V.  New  Haven,  38  Conn.  3(J8, 
a  similar  case;  Grube  v.  City  of  St.  Paul,  34 
Minn.  402,  2G  N.  W.  228,  a  similar  case;  Welch 
V.  Rutland,  56  Vt.  228,  a  case  of  injury  fi'om 
slipping  on  ice  caused  by  the  escape  of  water 
from  fire  hydrant;  Greenwood  v.  Louisville, 
13  Bush,  220,  in  which  plaintiff  was  negli- 
gently run  over  on  the  sidewalk  by  an  engine; 
Freeman  v.  City  of  Philadelphia,  7  Wkly. 
Notes  Cas.  45.  and  Knight  v.  City  of  Philadel- 
phia, 15  Wkly.  Notes  Cas.  307,  eases  of  care- 
less driving  of  fire  engine;  Dodge  v.  Granger, 
17  R.  I.  664,  24  Atl.  100,  a  case  of  injury  by 
the  negligent  projection  of  a  ladder  from  an 
engine  house:  Simon  v.  Atlanta,  67  Ga.  618, 
a  case  of  injury  from  a  rope  stretched  across 
the  street  by  the  fire  department. 

/f  It  is  quite  immaterial  that  the  duties  of 
these  orticors  are  defined  and  the  ofiices  cre- 
ated by  the  charter  or  organic  law  of  the  mu- 
nicipality. The  test  of  coi-porate  liability  for 
ithe  acts  of  the  officers  of  the  municipality  de- 
pends upon  the  nature  of  the  duties  with 
which  they  are  charged.  If  these,  being  for 
fthe  general  good  of  the  public  as  individual 
citizens,  are  governmental,  they  act  for  the 
state.  If  they  are  those  which  primarily  and 
legitimately  devolve  upon  the  municipality  it- 
self, they  are  its  agents.  Thus  in  Mead  v. 
New  Haven,  40  Conn.  72,  the  city,  pursuant 
to  its  charter,  appointed  an  inspector  of  steam 
boilers,  and  passed  a  by-law  which  imposed 
a  penalty  on  any  person  who  shoidd  use  a 
boiler  without  having  it  tested  by  an  inspect- 
or. In  a  suit  for  the  negligent  act  of  the  in- 
spector, the  court  said:  "The  duty  of  inspec- 
tion of  boilers  is  governmental.  The  object 
of  the  inspection  is  to  protect  all  citizens  from 
danger  who  may  come  in  contact  with  the 
boiler,  or  may  be  exiwsed  in  any  way  to  dan- 
ger from  its  unsafe  condition.  The  city,  as 
such,  has  no  pecuniaiT  or  individual  or  prl- 


.•s 


vate  interest  in  the  matter;  and  although  the 
power  of  the  city  over  the  subject  is  confer- 
red by  the  charter,  and  not  by  the  general 
law,  yet  the  city  must,  we  think,  be  regarded 
as  the  agent  of  the  government,  and  acting 
for  the  state,  and  not  for  itself,  in  making  the 
appointment  of  inspectors,  and  therefore  not 
hable  for  the  inspector's  negligence." 

The  fire  department  of  the  city  of  New 
York  derives  its  origin  and  defined  power 
from  the  same  organic  law  as  do  the  commis- 
sioners of  charities  and  correction  and  the  de- 
partment of  public  instruction,  and  the  offi- 
cers of  each  are  constituted  by  the  appoint- 
ment of  the  executive  officers  of  the  city.  Of 
the  connnissioners  of  charities  and  correction 
the  court  of  "Appeals  said  in  Maxmilian  v. 
Ma^or,  etc.,  G2  N.  Y.  160:  "It  is  seen  at  once 
that  the  powers  and  duties  of  the  commis- 
sioners of  charities  and  correction  are  not  to 
be  exei'cised  and  performed  for  the  especial 
benefit  of  the  defendant.  It  gets  no  emolu- 
ment therefrom,  nor  any  good  as  a  corpora- 
tion. It  is  the  public,  or  individuals  as  mem- 
bers of  the  commonalty,  who  are  interested 
in  the  due  exercise  of  these  powers,  and  the 
proper  performance  of  their  duties.  *  *  * 
These  chief  officers,  though  in  a  sense  its  offi- 
cers, as  having  no  power  unless  after  appoint- 
ment by  it,  and  as  mainly  confined  within  its 
territorial  boundaries,  are  yet  officers  of  the 
state  government,  in  the  sense  that  they  per- 
form its  functions  within  a  designated  po- 
litical division  of  the  state." 

Of  the  department  of  public  instruction,  the 
court  of  appeals  said  in  Ham  v.  Mayor,  etc., 
70  N.  Y.  4.")9:  "Although  fonnally  constituted 
a  department  of  the  muui(.-ii">al  government, 
the  duties  which  it  was  required  to  discharge 
were  not  local  or  corporate,  but  related  and 
belonged  to  an  important  branch  of  the  ad- 
ministrative department  of  the  state  govern- 
ment." 

It  was  held  in  each  of  these  cases  that  the 
city  of  New  York  was  not  liable  for  the  neg- 
Ugence  of  an  employe  of  one  of  these  depart- 
ments. And  in  Thompson  r.  Mayor,  etc., 
52  N.  Y.  Super.  Ct.  427,  it  was  held  that  the 
city  was  not  liable  for  the  neglisent  conduct 
of  the  employes  of  the  fire  dejiartment,  as  at 
present  constituted.  We  entertain  no  doubt 
that  the  city  was  not  liable  for  the  negligent 
management  of  the  fire  Iwat  in  the  present 
case,  and  that  the  libel  against  the  mayor, 
etc..  should  have  been  dismissed  by  the  dis- 
trict court.  It  is  accordingl.v  ordered  that  the 
cause  be  remitted  to  the  district  court,  with 
instructions  to  dismiss  the  libel  against  the 
mayor,  etc.,  with  costs  of  tliis  court  and  of 
the  district  court,  and  to  affirm  the  decree 
against  the  respondent  Gallagher,  with  costs. 


376 


COIs^TRIBUTORY  XEGLIGEXCE  OF  FERSO:S^  IJfJURED. 


GILLESriE  V.  CITY  OF  LIN'COLN. 
(52  N.  W.  811,  35  Neb.  34.) 
Supreme  Court  of  Nebraska.     June  11,  1892. 
Error  to  district  court,  Lancaster  county; 
Field,  Judge. 

Action  by  Clark  D.  Gillespie,  administrator 
of  Clark  D.  Gillespie,  deceased,  against  the 
city  of  Lincoln,  to  recover  damages  for  the 
death  of  deceased.  Judgment  for  defendant 
on  demurrer  to  the  petition.  Plaintiff  brings 
error.     Affirmed. 

Chas.  O.  Whedon  and  C.  E.  Magoon,  for 
plaintiff  in  error.  E.  P.  Holmes,  City  Atty., 
for  defendant  in  error. 

POST,  J.  This  case  comes  into  this  court 
on  a  petition  in  error.  The  error  assigned  is 
the  sustaining  of  a  demurrer  by  the  district 
court  of  Lancaster  county  to  the  petition  of 
plaintiff  in  error,  the  material  part  of  which 
is  as  follows:  "That  on  and  prior  to  the  29th 
day  of  May,  1889,  the  said  defendant  had  an 
organized  and  paid  fire  department,  and  had 
and  owned  engines,  hose,  hose  carts,  ladders, 
•oagons,  trucks,  and  other  apparatus  for  the 
use  by,  and  which  was  used  by,  said  defend- 
ant and  its  said  fire  department  in_  extin- 
guishing fires.  That  said  defendant  then  had 
and  owned  horses,  which  were  used  by  said 
defendant  in  drawing  said  wagons,  trucks, 
hose  carts,  and  engines  to  the  place  in  said 
city  where  a  fire  might  be  burning,  and  for 
other  purposes.  That  among  other  appai'atus 
the  said  defendant  then  owned  a  large  truck 
or  wagon,  upwards  of  twenty  feet  in  length, 
which  was  used  by  the  defendant  in  trans- 
porting about  the  city  long  ladders,  used  by 
said  fire  department.  That  said  defendant, 
at  the  time  of  committing  the  wrongs  herein- 
after mentioned,  had  in  its  pay  and  employ 
one  Peter  Keykendall,  who  was  under  the 
direction  and  control  of  the  defendant,  and 
whose  duty  it  was.  under  the  direction  of  said 
defendant,  to  drive  the  team  attached  to 
said  ladder  truck  or  wagon  about  the  city; 
and  said  wagon  was  not  at  the  time  herein- 
before mentioned.  May  29.  1889,  supplied  with 
any  brake  or  lock  or  other  appliance  for  stop- 
ping said  wagon  when  in  motion,  or  to  as- 
sist the  horses  to  said  wagon  attached  in 
stopping  the  same;  that  the  distance  be- 
tween the  front  and  hind  wheels  to  said  truck 
or  wagon  was  about  eighteen  feet;  that  said 
wagon  or  truck,  when  loaded  with  ladders 
and  other  apparatus,  carried  thereon,  and 
with  the  driver  thereon,  weighed  upwards  of 
two  thousand  pounds.  That  Ninth  street  ex- 
tends through  said  city  from  north  to  south, 
and  intersects  and  crosses  P,  R,  and  S  streets 
in  said  city,  and  said  Ninth  street  and  said 
P,  R,  and  S  streets  have  for  many  years  last 
past  been  public  streets  in  said  city,  and  on 
said  29th  day  of  May,  1889.  said  Ninth  street 
was  paved  with  wood,  and  between  S  and  P 
streets  was  a  paved  and  smooth  street,  and 
from  S  to  R  street  had  a  smooth  and  level 
surface,  and  was  free  from  obstruction,  and 


was  paved  with  wood.  That  the  said  Peter 
Keykendall,  under  his  emploj'ment,  was  by 
the  defendant  required  to  drive  said  ladder 
truck  or  wagon  about  the  citj'  when  no  fires 
were  burning  which  required  to  be  extin- 
guished by  said  defendant  or  said  fire  de- 
partment, for  the  purpose  of  exercising  the 
horses  to  said  wagon  attached,  and  was  also 
retiuired  to  drive  said  horses  attached  to  said 
wagon,  when  the  same  was  heavily  loaded, 
on  and  along  the  public  streets  of  the  said 
city  at  a  furious  rate  of  speed,  and  as  fast  as 
said  horses  could  be  made  to  run,  without 
any  regard  whatever  for  the  lives  or  safety 
of  citizens  of  the  city  who  might  be  upon  the 
streets,  and  this  when  no  fire  or  fires  were 
burning  which  required  the  action  of  the  de- 
fendant or  its  fire  department  to  extinguish, 
for  the  sole  and  only  purpose  of  exercising 
said  horses.  That  on  the  29th  day  of  May, 
1889,  the  said  Peter  Keykendall.  then  being 
in  the  employ  of  the  defendant,  and  acting 
under  the  orders  and  direction  of  the  defend- 
ant, drove  a  span  of  large,  high-spirited,  and 
powerful  horses  attached  to  said  ladder  truck 
or  wagon  about  the  public  streets  of  said  city, 
for  the  purpose  of  exercising  said  horses. 
Said  wagon  or  truck  was  loaded  with  ladders 
and  other  apparatus,  and  the  driver  rode 
therein,  and  said  wagon  with  its  load  weigh- 
ed upwards  of  two  thousand  pounds:  that 
said  wagon  was  not  on  said  day  supplied  with 
any  lock  or  brake  or  other  appliances  for 
stopping  or  assisting  in  stopping  said  wagon 
when  in  motion,  as  the  defendant  then  well 
knew.  That  said  Keykendall  on  said  day 
drove  said  span  of  horses  to  said  wagon  at- 
tached as  aforesaid  on  and  along  said  Ninth 
street  at  a  furious  and  dangerous  rate  of 
speed,  and  as  fast  as  said  horses  could  be 
driven,  when  there  was  no  fire  burning  which 
required  the  sen- ices  of  said  fire  department 
or  any  of  its  members  or  employes  of  said 
city  to  extinguish,  but  said  horses  wei'e  driv- 
en for  exercise  only;  that  Clark  D.  Gillespie, 
an  infant  of  tender  years,  being  then  but  six 
5'ears  of  age,  was  at  the  time  crossing  said 
Ninth  street  near  the  place  where  said  street 
intersects  and  crosses  R  street  at  the  north 
side  of  said  R  street,  and  said  span  of  horses 
were  driven  upon  said  Clark  D.  Gillespie,  and 
he  was  thrown  ttpon  the  pavement,  and  the 
front  wheel  of  said  wagon  was  driven  over 
and  across  his  body;  that  said  boy,  after 
being  knocked  down  and  run  over  by  said 
horses,  and  by  one  of  the  front  wheels  of  said 
wagon,  raised  his  head  and  attempted  to 
arise  from  the  pavement,  when  he  was  struck 
and  run  over  by  one  of  the  hind  wheels  of 
said  truck  or  wagon,  and  was  instantly  kill- 
ed. That  the  killing  of  said  boy  Avas  caused 
by  the  driving  over  him  of  said  team  and 
wagon  as  aforesaid.  Plaintiff  further  says 
that  at  said  time  said  team  and  wagon  were 
not  being  driven  to  any  fire  which  required  to 
be  extinguislied.  but  were  being  driven  on  and 
along  said  street  for  tlie  sole  and  only  purpose 
of  exercising  said  horses,  under  the  direction 


FOR  TORTS  OF  OFFICERS  OR  AGENTS. 


377 


and  orders  of  the  defendant,  at  a  dangerous 
rate  of  speed,  and  were  driven  so  fast  that  it 
was  impossible  for  the  said  Clark  D.  Gilles- 
pie to  escape  being  run  over.  That  the  said 
Olark  D,  Gillespie  was  the  son  of  the  plain- 
tiff. That  on  the  22d  of  July,  1889,  the  plain- 
tiff was  by  the  county  court  of  said  Lancas- 
ter county  duly  appointed  administrator  of 
the  estate  of  said  Clark  D.  Gillespie,  and 
gave  the  bond  by  said  court  required,  and 
took  the  oath  by  law  required  in  such  case. 
That  on  or  about  the  22d  of  July,  1889,  plain- 
tiff presented  to  the  city  council  his  claim  for 
damages  sustained  by  the  estate  of  said  Clark 
D.  Gillespie  by  reason  of  the  killing  of  him, 
the  said  Clark  D.  Gillespie,  together  with  the 
names  of  the  witnesses  and  a  statement  of 
the  time,  place,  nature,  circumstances,  and 
cause  of  the  injury  and  damages  complained 
of,  which  claim  was  verified  by  the  oath  of 
the  plaintiff;  that  afterwards,  and  on  or 
about  the  12th  of  August,  1SS9,  said  claim 
was  by  the  defendant  and  the  mayor  and 
council  thereof,  to  which  it  was  present- 
ed as  aforesaid,  rejected  and  disallowed. 
That  by  reason  of  the  killing  of  said  Clark  D. 
Gillespie  as  aforesaid  the  estate  of  the  de- 
ceased has  sustained  damages  in  the  sum  of 
$5,000,  for  which  sum  plaintiff  prays  judg- 
ment, with  interest  from  the  12th  of  August, 
1889,  and  for  costs. 

The  contention  of  the  defendant  in  error 
is  that  no  liability  exists  on  the  part  of  a 
city  like  Lincoln  for  injuries  occasioned  by 
the  negligent  acts  of  members  of  its  fire  de- 
partment. This  exemption  is  placet!  upon  the 
ground  that,  in  performing  tlieir  duties,  fire- 
men act  in  obedience  to  a  legislative  com- 
mand, and,  although  appointed  and  paid  by 
the  city,  they  are  to  be  regarded  rather  as 
officers  charged  with  a  public  duty  than  as 
servants  of  the  city.  Public  policy,  it  is 
claimed,  forbids  the  imposition  upon  a  city 
of  liability  for  the  negligence  of  tliis  class  of 
employes,  since  they  are  engaged  in  the  dis- 
charge of  a  duty  imposed  by  law  for  the  wel- 
fare of  the  public,  and  from  which  the  city, 
as  a  corporation,  derives  no  benefit  or  advan- 
tage. Counsel  for  plaintiff  in  error,  while  not 
conceding  the  rule  to  be  as  stated,  insists 
that  it  could  have  no  application  to  the  case 
at  bar,  for  the  reason  that  the  statute  undei* 
which  the  fire  department  of  the  city  of  Lin- 
coln is  organized  and  governed  is  pennissive 
only,  and  whatever  is  done  by  the  city  in  tliat 
respect  it  does  voluntarily,  and  therefore  the 
rule  respondeat  superior  is  applicable.  To 
this  proposition  we  cannot  assent.  The  pro- 
vision on  the  subject  is  found  in  subdivision 
33,  §  67,  of  the  charter  of  the  city  of  Lin- 
coln: "Cities  governed  under  the  provisions 
of  this  act  shall  have  power  by  ordinance  to 
provide  for  the  organization  of  a  fire  depart- 
ment, to  procure  fire  engines,  hooks,  ladders, 
buckets,  and  other  apparatus,  and  to  orgauize 
fire  engine,  hook  and  ladder,  and  bucket  com- 
panies, and  to  prescrilx!  rules  of  duty  and  the 
government  thereof,   with  such  penalties  as 


the  council  may  deem  proper,  not  exceeding 
one  hundred  dollars,  and  to  make  the  neces- 
sary appropriations  therefor,  and  to  estabhsh 
regulations  for  the  protection  from  and  extin- 
guishment of  fires."  This  language,  although 
permissive  in  form,  is  in  one  sense  mandato- 
ry. True,  it  is  not  mandatory  in  the  fullest 
sense  of  the  word,  since  the  duty  of  the  city 
to  provide  protection  to  life  and  property 
from  fire  cannot  he  enforced  by  mandamus  or 
other  remedy.  It  is  not  every  duty  unposed 
upon  the  state,  or  the  different  agencies 
thereof  called  "municipal  corporations,"  that 
can  be  thus  enforced.  Kentucky  v.  Denni- 
son,  24  IIow.  6G;  Dill.  Mim.  Corp.  (4th  Ed.) 
98.  It  is  none  the  less  a  duty  on  the  part  of 
the  city  because  the  law  has  not  provided  a 
means  for  its  enforcement  by  the  mandate  of 
the  court.  There  existed  a  moral  or  equita- 
ble obligation  on  the  part  of  the  defendant 
city  to  provide  means  of  protection  from  fires 
within  its  limits,  and  in  the  discharge  of  that 
duty  provision  was  made  for  its  fire  depart- 
ment. If  defendant  is  to  answer  for  the 
wrongful  act  of  Keykendall,  the  driver  of  the 
ladder  wagon,  it  must  be  upon  the  rule  re- 
spondeat superior.  It  is  clear  that  ujton  no 
other  principle  is  it  chargeable.  In  this  con- 
nection, it  should  be  noted  that  the  claim  is 
made  by  plaintiff  that  Keykendall,  in  driv- 
ing the  team  at  the  time  in  question,  •n-as  act- 
ing within  the  scope  of  his  authority.  Coun- 
sel says  in  his  brief:  "The  exercising  of  the 
team  was  a  proper  thing  to  do.  It  lies  in  the 
way  of  a  proper  discharge  of  the  functions  of 
the  department.  It  was  not  ultra  vires.  The 
way  in  which  it  was  performed  is  what  we 
complain  of."  Taking  it  for  gx-anted.  then, 
that  the  driving  of  the  team  at  the  time  in 
question  was  a  proper  exercise  of  the  func- 
tions of  the  fii'e  department  of  the  city,  and 
within  the  hne  of  duty  of  the  driver,  we  will 
proceed  to  examine  some  of  the  authorities 
bearing  upon  the  question  involved.  In  Dill. 
Mun.  Coi-p.  (4th  Ed.)  974.  the  rule  is  stated 
thus:  "If  the  corporation  appoints  or  elects 
them,  can  control  them  in  the  discharge  of 
their  duties,  can  continue  or  remove  them, 
can  hold  them  responsible  for  the  manner  in 
which  they  discharge  their  trust,  and  if  those- 
duties  relate  to  the  exercise  of  corporate  pow- 
ers, and  are  for  the  peculiar  benefit  of  the 
corporation  in  its  local  or  special  interest, 
they  may  justly  be  regarded  as  its  agents  or 
servants,  and  the  maxim  of  respondeat  su- 
perior applies.  But  if,  on  the  other  hand, 
they  are  elected  or  appointed  by  the  corpora- 
tion, in  obedience  to  the  statute,  to  perform 
a  public  service,  not  peculiarly  local  or  cor- 
porate, but  because  this  mode  of  selection 
has  been  deemed  expedient  by  the  legislature 
in  the  distrilmtion  of  the  powers  of  the  gov- 
ernment, if  they  are  independent  of  the  cor- 
poration as  to  the  tenure  of  their  office  and 
the  manner  of  discharging  their  duties,  they 
are  not  to  be  regarded  as  the  servants  or 
agents  of  the  corporation,  for  whose  acts  or 
negligence  it  is  impliedly  liable,  but  as  pub- 


378 


CONTRIBUTORY  NEGLIGENCE  OP  PERSON  INJURED. 


lie  or  state  officers,  with  such  powers  and  du- 
ties as  the  statute  confers  upon  them,  and 
the  doctrine  of  respondeat  superior  is  not  ap- 
plicable." Among  the  oflScers  who  are  not 
servants  of  a  city,  within  the  foregoing  rule, 
and  for  whose  neghgence  it  will  not  be 
chargeable,  the  learned  author  enumerates 
policemen,  health  officers,  and  firemen.  The 
rule  as  to  the  liability  of  the  latter  the  author 
states,  in  section  976,  as  follows:  "The  ex- 
emption from  liabiUty  in  these  and  the  like 
cases  Is  upon  the  ground  that  the  service  is 
performed  by  the  corporation  in  obedience 
to  an  act  of  the  legislature;  is  one  in  which 
the  corporation,  as  such,  has  no  particular  in- 
terest, and  from  which  it  derives  no  espe- 
cial benefit  in  its  corporate  capacity;  that 
the  members  of  the  fire  department,  although 
appointed,  employed,  and  paid  by  the  city  cor- 
poration, are  not  the  agents  and  servants  of 
the  city,  for  whose  conduct  it  is  liable,  but 
they  act  rather  as  officers  of  the  city,  charged 
with  a  public  service,  for  whose  negligence  in 
the  discharge  of  official  duty  no  action  lies 
against  the  city,  without  being  expressly  giv- 
en. The  maxim  of  respondeat  superior  has 
therefore  no  application."  To  the  same  ef- 
fect, see  2  Thomp.  Neg.  735;  Shear.  &  R. 
Meg.  295,  296. 

Hayes  v.  City  of  Oshkosh,  33  Wis.  314,  was 
an  action  to  recover  damages  resulting  from 
a  fire  occasioned  by  the  negligent  use  of  an 
engine  employed  in  suppressing  a  fire  in  the 
neighborhood.  Chief  Justice  Dixon,  in  the 
opinion,  says:  "Neither  the  charter  of  the 
city  nor  the  general  statutes  of  the  state 
contain  any  peculiar  provision  imposing  lia- 
bility in  cases  of  this  kind,  and  the  decisions 
elsewhere  are  numerous  and  uniform  that  no 
such  liability  exists."  Wilcox  v.  City  of  Chi- 
cago, 107  111.  334,  is  directly  in  point.  In  that 
case  the  plaintiff  sought  to  recover  for  in- 
juries occasioned  by  a  collision  between  his 
carriage  and  a  hook  and  ladder  wagon  of  the 
city,  through  the  negligence  of  the  driver 
while  in  the  discharge  of  his  duty.  In  the 
opinion  of  the  com:t,  by  Judge  Walker,  it  is 
said:  "To  allow  recoveries  for  the  negligence 
of  the  fire  department  would  almost  certainly 
subject  property  holders  to  as  great  if  not 
greater  burdens  than  are  suffered  from  dam- 
age by  fire.  Sound  public  policy  would  forbid 
it,  If  it  were  not  prohibited  by  authority." 
In  Fisher  v.  City  of  Boston,  104  Mass.  94, 
the  plaintiff  received  personal  injuries  through 
the  negligent  use  of  hose  by  a  fire  company 
of  the  city  in  extinguishing  a  fire  on  adjoin- 
ing premises.  Judge  Gray,  in  the  opinion  of 
the  court,  says:  "But  the  extinguishment  of 
fires  is  not  for  the  immediate  advantage  of 
the  town  in  its  corporate  caiTacity,  nor  is  any 
part  of  the  expense  thereof  authorized  to  be 
assessed  upon  owners  of  buildings  or  other 
special  class  of  persons  whose  property  is  pe- 
culiarly benefited  or  protected  thereby.  In 
the  absence  of  express  statute,  therefore,  mu- 
nicipal corporations  are  no  more  liable  to  ac- 
tions for   injuries   occasioned   by   reason   of 


negligence  in  using  or  keeping  in  repair  the 
fire  engines  owned  by  them  than  in  the  case 
of  a  town  or  highway."  In  Hafford  v.  New 
Bedford,  16  Gray,  297,  the  plaintiff  was 
struck  and  injured  by  a  hose  cart  on  a  side- 
walk of  a  pubUc  street.  The  firemen  in 
charge  thereof  had  negligently  drawn  it  along 
and  upon  the  sidewalk  from  the  engine  house 
10  or  15  rods  distant.  The  city  was  held  not 
liable.  In  Jewett  v.  New  Haven,  38  Conn. 
368,  the  plaintiff,  without  negligence  on  his 
part,  was  struck  and  injured  in  a  public 
street  by  a  hose  cart,  which  was  being  driven 
to  the  engine  house  for  an  additional  supply 
of  hose  for  use  at  a  fire  then  raging,  but  at  a 
dangerous  rate  of  speed,  and  without  the  ex- 
ercise of  reasonable  precaution  for  the  safe- 
ty of  passers-by.  It  was  held  the  rule  re- 
spondeat superior  did  not  apply,  and  the  city 
was  not  chargeable.  In  Dodge  v.  Granger 
(K.  I.)  24  Atl.  100,  a  very  recent  case,  on  the 
authority  of  cases  above  cited,  the  city  was 
held  not  liable  for  injuries  caused  by  con- 
tact with  a  ladder  projecting  across  the  side- 
v/alk  in  front  of  an  engine  house,  negligently 
permitted  by  the  firemen  to  remain  in  that 
position  while  engaged  in  cleaning  the  house. 
This  principle  has  been  repeatedly  applied  to 
other  officers  or  employes  of  municipal  corpo- 
rations, as  in  Maximilian  v.  Mayor,  62  N.  Y. 
160,  where  plaintiff's  intestate  was  killed  by 
a  collision  with  an  ambulance  wagon,  which 
was  caused  by  the  negligence  of  the  driver, 
an  employe  of  the  commissioners  of  public 
charities  and  corrections;  Haight  v.  Mayor, 
etc.,  24  Fed.  93,  where,  following  the  last 
case,  it  is  held  that  the  city  is  not  liable  for 
damage  caused  by  a  collision  with  a  steam- 
boat owned  by  the  city,  but  in  the  exclusive 
use  of  the  board  of  charities  and  corrections; 
Condict  V.  Jersey  City,  46  N.  J.  Law,  157, 
where  the  deceased  was  killed  through  the 
negligence  of  a  driver  employed  by  the  board 
of  public  works  to  remove  garbage  from  the 
streets  to  a  public  dumping  ground;  Cald- 
well V.  City  of  Boone,  51  Iowa,  687,  2  N.  W. 
614,  where  the  injury  resulted  from  the 
wrongful  act  of  a  policeman  paid  by  the  city; 
Ogg  V.  City  of  Lansing,  35  Iowa,  495;  Brown 
V.  Vinalhaven,  65  Me.  402,  and  Barbour  v. 
Ellsworth,  67  Me.  294,— in  each  of  which  it 
was  held  that  the  city  was  not  chargeable 
with  the  negligence  of  its  health  officers; 
Burrill  v.  Augusta,  78  Me.  118,  3  Atl.  177,  in 
which  plaintiff's  horse  was  frightened  by  the 
escape  of  steam  from  a  fire  engine,  negligent- 
ly allowed  to  remain  in  the  street;  Elliott  v. 
Philadelphin.  75  Pa.  St.  347,  where  plaintiff's 
horse  was  killed  through  the  negligence  of  a 
police  officer,  by  whom  he  had  been  arrested 
for  violation  of  an  ordinance  of  the  city 
against  last  driving;  Bryant  v.  City  of  St. 
Paul,  33  Minn.  289,  23  N.  W.  220,  where  the 
plaintiff  fell  into  a  vault  negligently  left  open 
and  exposed  by  the  boai-d  of  health.  In  the  last 
case,  the  distinction  between  the  class  of  of- 
ficers above  mentioned  and  other  agents  of 
the  city  is  clearly  pointed   out  by   Vander- 


rOR  TORTS  or  OFFICERS  OR  AGENTS. 


879 


burgh,  J.,  as  follows:  "The  duties  of  such 
officers  are  not  municipal  or  corporate  duties 
with  which  the  corporation  is  charged  in 
consideration  of  charter  privileges,  but  are 
police  or  governmental  functions  which  could 
be  discharged  equally  well  through  agents  ap- 
pointed by  the  state,  though  usually  associ- 
ated with  and  appointed  by  the  municipal 
body."  There  are  many  cases  in  the  reports 
of  the  states  and  the  United  States  in  har- 
mony with  the  foregoing  among  which  are 
Smith  V.  Rochester,  76  N.  Y.  500;  Van  Horn 
V.  City  of  Des  Moines,  63  Iowa,  447,  19  N.  W. 
293;  O'Meara  v.  New  York,  1  Daly,  425; 
Wheeler  v.  Cincinnati,  19  Ohio  St.  19;  How- 
ard V.  San  Francisco,  51  Cal.  52;  Ham  v. 
Mayor,  etc.,  70  N.  Y.  459;  Welch  v.  Rutland, 
56  Vt  228.  The  cases  cited  by  plaintiff  may 
be  said  to  sustain  the  proposition  that  the 
law  Imposes  upon  a  city  the  duty  to  keep  its 
streets  in  a  reasonably  safe  condition  for  use 


by  the  pubhc,  and  for  a  neglect  of  that  duty 
it  wiU  be  answerable.     They  are  plainly  dis- 
tinguishable from  those  to   which   we  have 
referred,  since  the  duty  of  the  city  with  refer- 
ence to  its  streets  is  a  coi-porate  duty.     As 
said  by  Judge  Folger,  in  Maximilian  v.  May- 
or, supra:    "It  is  a  duty  with  which  the  city 
is  charged  for  its  own  corporate  benefit,  to  be 
performed  by  its  own  agents,  as  its  own  cor- 
porate act."    This  distinction  is  made  also  in 
Ehrgott  V.  Mayor,  etc.,  96  N.  Y.  274,  one  of 
the  cases  cited  by  plaintiff.     To  the  extent  [ 
that  the  exemption  of  a  city  from  liability  for 
acts  of  officers  herein  enumerated  affects  the  I 
general  rule  of  liability  for  obstruction  of  the  , 
streets  of  the  city,  it  must  be  held  to  be  an 
exception  thereto,— an  exception  based  upon  ' 
a  public  policy  which  subordinates  mere  pri- 
vate interests  to  the  welfare  of  the  general  ^ 
public.     The  judgment  is  right,  and  is  af- 
firmed.   The  other  judges  concur. 


380 


CONTEIBUTORY  iTEGLIGENCE  OF  PERSOI^^  INJURED. 


WHITFIELD  V.  CITY  OF  PARIS. 
(19  S.  W.  566,  84  Tex.  431.) 
Supreme  Court  of  Texas.     AprU  26,  1892. 
Appeal  from  district  court,  Lamar  coun- 
ty;  E.  B.  MeClellan,  Judge. 

Action  by  Sarali  Whitfield  against  the  city 
of  Paris  for  personal  injuries.  A  demurrer 
to  the  petition  was  sustained,  and  plaintiff 
appeals.      Affirmed. 

Dudley  &  Moore,  for  appellant.  A.  P. 
Park,  for  appellee. 

TARLTON,  J.  This  appeal  is  prosecuted 
from  a  judgment  rendered  by  the  district 
court  of  Lamar  county  in  favor  of  appellee. 
The  appellant  sued  appellee  to  recover  for 
personal  injuries  inflicted  upon  her  by  one 
Beatis,  in  shooting  at  an  unmuzzled  dog,  in 
the  attempted  enforcement  of  an  ordinance 
of  the  city  of  Paris  forbidding  dogs  to  run 
at  large.  The  correctness  of  the  action  of 
the  trial  court  in  sustaining  a  general  de- 
murrer to  the  plaintiff's  petition  is  the  only 
question  to  be  determined.  This  petition, 
as  stated  by  appellant,  alleged  the  incorpora- 
tion of  the  city  under  the  general  incorpora- 
tion act  of  the  state  of  Texas,  being  title  17 
of  the  Revised  Statutes  of  1879,  entitled 
"Cities  and  Towns."  That  the  city  had 
power,  by  its  charter,  to  appoint  policemen, 
prescribe  their  duties  and  compensation,  and 
discontinue  and  remove  any  such  policemen, 
at  the  pleasure  of  the  city  council.  That 
the  city  also,  by  its  charter,  had  power  to 
tax,  regulate,  or  restrain  and  prohibit  the 
running  at  large  of  dogs,  and  to  authorize 
their  destruction  when  at  large  contrary  to 
ordinance.  That  in  July,  1888,  the  said  city, 
by  and  through  its  city  council,  passed  an 
ordinance  prohibiting  thereafter  the  running 
at  large  of  dogs,  without  being  muzzled, 
within  its  corporate  limits,  between  the  1st 
of  July  and  the  20th  of  September  of  each 
year,  and  requiring  and  making  it  the  duty 
of  the  city  marshal  and  any  policeman  to 
kill  any  such  dog  when  found  so  running  at 
large.  That  said  city,  by  and  through  the 
city  council,  employed  and  appointed  one 
Thomas  Beatis  to  kill  dogs  under  said  or- 
dinance, agreeing  to  pay  him  a  certain  stipu- 
lated sum  per  month  for  his  services,  the 
said  Beatis  then  being  in  the  employ  and 
subject  to  the  orders  of  the  city.  That,  at 
the  time  and  after  the  passage  of  said  or- 
dinance, the  said  city,  acting  by  and  through 


the  city  council,  made  it  the  duty  of  and  or- 
dered the  said  Beatis  to  go  upon  the  public 
streets,  alleys,  and  highways  of  the  city  and 
kill  all  dogs  found  running  at  large  without 
being    muzzled.       That   about   the    24th    of 
August,  1888,  while  the  said  Beatis  was  in 
the  employ  and  service  of  the  city,  and  act- 
ing  in   the   scope  of   his   employment,   and 
while  executing  and  carrying  out  the  express 
orders  and  commands  of  the  city  in  killing 
a  dog  running  at  large  without  a  muzzle,  on 
one  of  the  streets  of  the  city,  he,  the  said 
Beatis,  recklessly,  negligently,  and  carelessly 
shot  off,  discharged,  and  fired  a  double-bar- 
reled shotgun,  loaded  with  powder  and  shot, 
(the  shot  being  of  the  denomination   com- 
monly  called    "large   goose   shot,")    on   and 
along  one  of  the  most  public  streets  in  the 
city,  where  people  were  and  are  constantly 
passing  in  the  discharge  of  the   duties   of 
their    various    avocations.       That   the    said 
Beatis,   in    so    negligently,    carelessly,   and 
recklessly  shooting  on  and  along  said  public 
street,  in  carrying  out  the  orders  of  the  city 
as  aforesaid,  inflicted  upon  plaintiff  two  pain- 
ful and  serious  wounds.      Then  follow  the 
allegations  as  to  the  plaintiff's  injuries,  suf- 
fering, and  loss.     The  enactment  of  the  or- 1 
dinance  referred  to  in  the  petition  was  an  j 
exercise  by  the  city  of  its  police  power.     Its ' 
purpose  was  to  secure  the  safety,  health,  and  ; 
welfare    of    the    public.       Beatis,    the    man ' 
whose  act  was  complained  of,  was  not,  there-  / 
fore,  a  mere  servant  or  employe,  though  thef 
petition  so  denominates  him.      He  occupied 
the  attitude  of  a  policeman  engaged  in  the/ 
enforcement  of  an  ordinance  of  the  city.     In' 
such  a  case,  the  maxim  respondeat  superior/ 
does  not  apply.      Where  a  city  acts  as  the' 
agent  of   the   state,    it  becomes   the   repre-  ' 
sentative  of  sovereignty.      It  is  not  acting 
in   the   management  of  its  private  or   cor- 
porate concerns,  but  in  the  interest  of  the 
public,  and  as  the  guardian  of  the  health, 
peace,  convenience,  and  welfare  of  the  pub- 
lic.     Under   such   circumstances,   it  is   not 
liable  for  the  acts  of  its  officers  or  employes 
engaged  in  the  execution  of  its  ordinances. 
2  Dill.  Mun.  Corp.  §  975;    Culver  v.  City  of 
Streator  (111.  Sup.)  22  N.  E.  810,  and  the  nu- 
merous authorities  there  cited;    Harrison  v. 
Columbus,   44   Tex.   418;    Keller  v.   Corpus 
Christi,  50  Tex.  614;    Conway  v.  Beaumont, 
61  Tex.  12;   Galveston  v.  Posnalnsky,  62  Tex. 
130;    Corsicana  v.  White,  57  Tex.  382.     The 
judgment  should  be  affirmed. 


PDBLISHIHO  CO.,  PBXNTKBa  AMD  STKSBOTYPBBiS.  BT.  FADI<,  UINH. 


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